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No. 3--02--0327

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

A jury found the defendant, Robert E. Bagnell, Jr., guilty of driving under the influence ofalcohol (625 ILCS 5/11--501(a)(2), (c--1)(3) (West 2002)) and driving while his license was revoked(625 ILCS 5/6--303(a), (d) (West 2002)). He was sentenced to concurrent terms of five and threeyears' imprisonment, respectively, for these offenses. On appeal, the defendant argues that he shouldreceive nine rather than eight days' credit toward his sentences for his presentence custody. The Stateagrees. The defendant also submits that the cause should be remanded for proper admonishmentsunder Supreme Court Rule 605(a) (Official Reports Advance Sheet No. 21 (October 17, 2001), R.605(a), eff. October 1, 2001). We affirm the defendant's sentences as modified and remand for properRule 605(a) admonishments and further proceedings.

BACKGROUND

The record shows that the defendant was arrested for the above-mentioned infractions onFebruary 6, 2001. He posted bond and was released from custody on February 14, 2001.

At trial, the jury found the defendant guilty of the offenses as noted above. The defendant thenwas sentenced on May 2, 2002. Following imposition of the sentences, the judge admonished thedefendant as follows concerning the procedures involved in appealing his case:

"Mr. Bagnell, it's my duty to advise you that you have the right to appeal. Youhave a right to request the clerk to prepare and file a notice of appeal and the right, ifindigent, to be furnished without cost with a transcript of these proceedings, includingthe trial or hearing. You also, if indigent, have a right to have counsel appointed on theappeal. Your right to appeal will only be preserved if a notice of appeal is filed in thistrial court within 30 days of today."

The sentencing order indicates that the defendant is to receive eight days' credit toward hissentence for presentence incarceration. The defendant appeals.

ANALYSIS

I. Credit for Time Served

The defendant argues that he should receive nine rather than eight days' credit toward hissentence for time served. The State agrees.

A defendant is entitled to credit against his sentence for time spent in custody prior tosentencing. 730 ILCS 5/5--8--7(b) (West 2002). Any fraction of a day in custody counts as a full dayfor purposes of calculating the credit. People v. Smith, 258 Ill. App. 3d 261, 630 N.E.2d 147 (1994).

The defendant was arrested on February 6, 2001, and posted bond on February 14, 2001. He is therefore entitled to a presentence credit of nine rather than eight days. Accordingly, we orderthat the mittimus be modified to reflect one additional day of credit for presentence custody.

II. Rule 605(a) Admonishments

The defendant submits that the trial court erred by failing to properly admonish him underSupreme Court Rule 605(a). He asks that we remand the matter for proper Rule 605(a)admonishments and the opportunity, thereafter, to file a motion to reconsider sentence.

We review questions concerning supreme court rule compliance de novo. People v. Hall, 198Ill. 2d 173, 760 N.E.2d 971 (2001).

Rule 605(a) states certain admonishments a trial court must give a defendant who has pled notguilty after he has been convicted and sentenced. The admonishments concern the proper proceduresto appeal his case. Prior to October 1, 2001, the rule required the court to advise such a defendantthat (1) he has the right to appeal; (2) he must file a timely notice of appeal in order to perfect hisappeal; (3) if indigent, he will be furnished with transcripts of the trial and hearings free of charge; and(4) if indigent and sentenced to a term of imprisonment, he will have counsel appointed on appeal. See188 Ill. 2d R. 605(a).

Effective October 1, 2001, Rule 605(a) was amended to further advise the defendantconcerning preservation of sentencing issues on appeal. The amended rule additionally required thecourt to admonish the defendant:

"B. that prior to taking an appeal, if the defendant seeks to challenge thecorrectness of the sentence, or any aspect of the sentencing hearing, the defendant mustfile in the trial court within 30 days of the date on which sentence is imposed a writtenmotion asking to have the trial court reconsider the sentence imposed, or consider anychallenges to the sentencing hearing, setting forth in the motion all issues or claims oferror regarding the sentence imposed or the sentencing hearing;

C. that any issue or claim of error regarding the sentence imposed or anyaspect of the sentencing hearing not raised in the written motion shall be deemedwaived; and

D. that in order to preserve the right to appeal following the disposition of themotion to reconsider sentence, or any challenges regarding the sentencing hearing, thedefendant must file a notice of appeal in the trial court within 30 days from the entry ofthe order disposing of the defendant's motion to reconsider sentence or order disposingof any challenges to the sentencing hearing." Official Reports Advance Sheet No. 21(October 17, 2001), RS. 605(a)(3)(B), (a)(3)(C), (a)(3)(D), eff. October 1, 2001.

The trial court's admonishments in this case did not conform with the newer form of the rule,because the court failed to advise the defendant of the need to raise sentencing issues in a timely motionto reconsider sentence in order to preserve these issues for appeal. A similar mistake was made by atrial court in People v. Williams, 344 Ill. App. 3d 334, 800 N.E.2d 168 (2003). In Williams, adifferent panel of this court stated that where the defendant failed to raise a sentencing issue on appeal,the trial court's failure to properly admonish the defendant under Rules 605(a)(3)(B), (a)(3)(C), and(a)(3)(D) did not prejudice the defendant's case. The Williams court held that, under suchcircumstances, strict compliance with the rule was not necessary and remandment was not required. We respectfully disagree with the Williams court's holding for the reasons that follow.

In determining whether strict compliance is required, an examination of all of Rule 605 isinstructive. Rule 605 concerns two categories of defendants who are in different procedural postures. Rule 605(a) applies to defendants who have pled not guilty and have gone to trial. Rules 605(b) and(c) concern defendants who have pled guilty. Each of the three sections, (a), (b), and (c) of Rule 605states that the trial court "shall advise" the defendant concerning what procedures are required if thedefendant wishes to appeal certain aspects of his case. Official Reports Advance Sheet No. 21(October 17, 2001), R. 605, eff. October 1, 2001. In other words, the admonishments in all threesubsections of Rule 605 are mandatory.

Sections (b) and (c) of Rule 605 state the admonishments concerning procedures found in Rule604(d) (188 Ill. 2d R. 604(d)). Rule 604(d) sets forth the procedures for perfecting an appeal from aconviction based on a guilty plea. Because failure to comply with the procedures of Rule 604(d) resultsin the loss of the defendant's right to appeal, Illinois courts have required strict compliance with theadmonishments in Rules 605(b) and (c), and remandment when the trial court has failed to properlygive those admonishments. See People v. Jamison, 181 Ill. 2d 24, 690 N.E.2d 995 (1998); People v.Doguet, 307 Ill. App. 3d 1, 716 N.E.2d 818 (1999); People v. Lloyd, 338 Ill. App. 3d 379, 788N.E.2d 1169 (2003).

Unlike Rules 605(b) and (c), Rules 605(a)(3)(B), (a)(3)(C), and (a)(3)(D) do not concernperfection of a defendant's appeal. However, the admonishments contained in those paragraphsconcern preservation of the defendant's sentencing issues for appeal. Unless a defendant subject toRule 605(a) admonishments raises sentencing issues in a motion to reconsider, the defendant'ssentencing issues are waived on appeal.

Similar to the relationship between Rule 604(d) and Rules 605(b) and (c), the admonishmentsin Rules 605(a)(3)(B), (a)(3)(C), and (a)(3)(D) track the requirements of section 5--8--1(c) of theUnified Code of Corrections (730 ILCS 5/5--8--1(c) (West 2002)). Section 5--8--1(c) requires adefendant to file a motion to reconsider sentence within 30 days of sentencing. The mandatorylanguage of section 5--8--1(c) requires strict compliance to preserve sentencing issues for appeal. People v. Reed, 177 Ill. 2d 389, 686 N.E.2d 584 (1997).

A trial court's failure to properly admonish a defendant under a supreme court rule does notrequire remandment unless the defendant has been prejudiced by the inadequate admonishment. People v. Davis, 145 Ill. 2d 240, 582 N.E.2d 714 (1991). Defendants who receive inadequateadmonishments under Rule 605(a), (b), or (c) are prejudiced because they risk forfeiting the right toraise issues on appeal. If a defendant who has pled guilty fails to follow the admonishments of Rule605(b) or (c), that defendant cannot raise issues on appeal because he has not perfected his appeal. Similarly, if a defendant who has pled not guilty fails to follow the admonishments of Rules605(a)(3)(B), (a)(3)(C), and (a)(3)(D), such a defendant cannot raise sentencing issues because thedefendant has waived those issues on appeal.

We rule that the strict compliance required for Rules 605(b) and (c) admonishments also isrequired for Rule 605(a) admonishments. We further hold that the remedy for failure to give properRule 605(a) admonishments is the same remedy as for failure to give proper Rule 605(b) or (c)admonishments--that is, remandment for proper admonishments.

CONCLUSION

For the foregoing reasons, we modify the sentences imposed by the Grundy County circuitcourt to give credit to the defendant for nine rather than eight days of presentence incarceration towardhis sentences. We otherwise affirm the judgments of conviction. We remand the matter for properRule 605(a) admonishments and further proceedings.

Affirmed as modified and remanded with directions.

SLATER, J., concurs.

LYTTON, J., specially concurs.

I wish to state that we are not so much overrulingPeople v. Williams, 344 Ill. App. 3d 334 (2003), asacknowledging a developing pattern that brings us to ourdecision today. In People v. Parker, _____ Ill. App. 3d_____ (2003), this court remanded for proper admonishmentsafter the State conceded that defendant was not given aproper admonition under Rule 605(a)(3). In this case, thenecessity of showing prejudice was not argued, the partieslikely recognizing that, as the majority states, prejudiceis inherent when admonishments are not given. Thus,remand is necessary when the trial court does not properlyadmonish a defendant under Rule 605(a).