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No. 3--01--0744

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2003

Following a jury trial, defendant Alan W. Breedlove wasconvicted of the first degree murder (720 ILCS 5/9--1(a)(1) (West2000)) of Valerie Rakestraw. He was subsequently sentenced to 50years' imprisonment. Defendant appeals, claiming that the causeshould be remanded to the trial court for admonishments pursuantto Supreme Court Rule 605(a) (Official Reports Advance Sheet No.21 (October 17, 2001), R. 605(a), eff. October 1, 2001). Weaffirm the judgment of the circuit court.

The record shows that the trial court entered defendant'sconviction on May 24, 2001, and set the cause for a sentencinghearing to be held August 10, 2001. No posttrial motion wasfiled, and the cause proceeded to sentencing as scheduled. Atthe close of the hearing, the trial court admonished defendant ofhis right to appeal and that such right would be preserved onlyif a notice of appeal was filed in the trial court within 30 daysof sentencing. See 188 Ill. 2d R. 605(a). Under the rule ineffect at that time, the trial court was not required to admonisha defendant of his obligation to preserve sentencing issues witha written motion filed within 30 days after the imposition ofsentence. See 730 ILCS 5/5--8--1(c) (West 2000). Defendant didnot file a timely postsentencing motion.

On appeal, defendant argues that "fundamental fairness"requires that the cause be remanded for further admonishmentsunder Rule 605(a), which was amended effective October 1, 2001,nearly two months after defendant was sentenced. The amendedrule requires the trial court to admonish a defendant thatsentencing issues must be preserved for appeal by filing a timelypostsentencing motion. Official Reports Advance Sheet No. 21(October 17, 2001), R. 605(a), eff. October 1, 2001. In supportof his position, defendant cites People v. Mazar, 333 Ill. App.3d 244, 775 N.E.2d 135 (2002), which is directly on point.

The State argues that Mazar is poorly reasoned and urgesthis court to adhere to the reasoning of decisions rendered priorto the October 1, 2001, amendment to Rule 605(a). See People v.Little, 318 Ill. App. 3d 75, 743 N.E.2d 594 (2001); People v.Bailey, 311 Ill. App. 3d 265, 724 N.E.2d 1032 (2000); People v.Kyles, 303 Ill. App. 3d 338, 708 N.E.2d 391 (1998). In each ofthese cases, the court rejected the defendant's argument that thetrial court must advise defendants of the need to preservesentencing issues pursuant to section 5--8--1(c) of the UnifiedCode of Corrections (Code) (730 ILCS 5/5--8--1(c) (West 2000)).

Resolution of the issue before us requires a briefhistorical overview of Supreme Court Rule 605(a) and related law. Since August 11, 1993, section 5--8--1(c) of the Code (730 ILCS5/5--8--1(c) (West 1994)) has required that a defendant file awritten postsentencing motion in the trial court to preservesentencing issues for appellate review. People v. Reed, 177 Ill.2d 389, 686 N.E.2d 584 (1997). However, prior to October 1,2001, Rule 605(a) did not include an admonishment about thepotential waiver of sentencing issues if no postsentencing motionwas filed. See Bailey, 311 Ill. App. 3d 265, 724 N.E.2d 1032.

Between the Reed decision in 1997 and October 1, 2001,several appellate justices urged the supreme court to amend Rule605(a) to include a section 5--8--1(c) admonishment, so thatdefendants seeking review of their sentences would preserve theirsentencing issues by filing the required written motion in thetrial court. See, e.g., People v. Corrie, 294 Ill. App. 3d 496,690 N.E.2d 128 (1998); see also Bailey, 311 Ill. App. 3d at 271,724 N.E.2d at 1036 (Inglis, J., specially concurring); Little,318 Ill. App. 3d at 82, 743 N.E.2d at 600 (O'Malley, J.,specially concurring). Courts addressing the waiver ofsentencing claims declined, however, to read into Rule 605(a) anyadditional exceptions, limitations or other conditions. See,e.g., Bailey, 311 Ill. App. 3d 265, 724 N.E.2d 1032; Little, 318Ill. App. 3d 75, 743 N.E.2d 594.

In Little, the court expressly noted that a defendant whofailed to preserve a sentencing issue by filing a writtenpostsentencing motion pursuant to section 5--8--1(c) did notforfeit a substantive right, because he could still assert plainerror on review. Little, 318 Ill. App. 3d 75, 743 N.E.2d 594;see also Kyles, 303 Ill. App. 3d 338, 708 N.E.2d 391; Bailey, 311Ill. App. 3d 265, 724 N.E.2d 1032. Accordingly, the courtdeclined to find that due process was denied by the lack of suchadmonishment. Little, 318 Ill. App. 3d 75, 743 N.E.2d 594.

After Rule 605(a) was amended to require trial courts toinclude the section 5--8--1(c) admonishment, the appellate courtrevisited the waiver of sentencing issues in Mazar. In Mazar, ashere, the trial court imposed sentence prior to October 1, 2001. On review, the court acknowledged that the admonishments Mazarhad received complied with the version of Rule 605(a) in effectat the time the defendant was sentenced (145 Ill. 2d R. 605(a)). Mazar, 333 Ill. App. 3d 244, 775 N.E.2d 135. It does not appearthat Mazar claimed error in the sentence imposed, and theappellate court found that the admonishments as given by thetrial court did not deprive Mazar of due process. Mazar, 333Ill. App. 3d 244, 775 N.E.2d 135. Nevertheless, analogizing toguilty plea cases arising under unamended Rule 605(b) (e.g.,People v. Leahy, 322 Ill. App. 3d 974, 751 N.E.2d 634 (2001)),the court ruled that "fundamental fairness" required that thecase be remanded to the trial court for further admonishmentsunder Rule 605(a), as amended effective October 1, 2001. Mazar,333 Ill. App. 3d 244, 775 N.E.2d 135.

In our opinion, the Mazar court misapplied the concept of"fundamental fairness" to reach its result. "Fundamentalfairness" is a specific exception to the waiver doctrine, whichwarrants judicial review of procedurally defaulted claims only ifactual prejudice has resulted from the claimed errors. People v.Pitsonbarger, 205 Ill. 2d 444 (2002); People v. Jackson, 205 Ill.2d 247 (2001); People v. Simpson, 204 Ill. 2d 536 (2001); Peoplev. Hudson, 195 Ill. 2d 117, 745 N.E.2d 1246 (2001); People v.Mahaffey, 194 Ill. 2d 154, 742 N.E.2d 251 (2000).

In the context of negotiated guilty plea cases arising underunamended Rule 605(b), where the defendant sought to challengeonly his sentence, actual prejudice resulted from misinformationregarding the steps the defendant needed to take to preserve hisright of appeal. Under unamended Rule 605(b), the trial courtadmonished the defendant that he could appeal upon filing eithera motion to reconsider sentence or a motion for leave to withdrawhis guilty plea. 145 Ill. 2d R. 605(b). Where a defendant in anegotiated plea case relied on the admonishments and elected tofile only a motion to reconsider sentence, he thereby forfeitedhis right to appeal the very claims he sought to preserve forreview. See People v. Linder, 186 Ill. 2d 67, 708 N.E.2d 1169(1999). Acknowledging the prejudice inherent in the loss of thevaluable right to direct review, reviewing courts ruled that"fundamental fairness" required that such cases be remanded tothe trial court for proper admonishments as contained in Rule605(b), as amended effective November 1, 2000. See People v.Diaz, 192 Ill. 2d 211, 227, 735 N.E.2d 605, 613 (2000); Leahy,322 Ill. App. 3d 974, 751 N.E.2d 634.

No comparable loss or prejudice is implicit in admonishmentsgiven pursuant to unamended Rule 605(a). Unlike Rule 605(b),unamended Rule 605(a) did not misinform defendants about thesteps needed to perfect an appeal. The rule was merely silent asto the potential waiver of sentencing issues, a matter clearlyset forth in section 5--8--1(c) of the Code. A defendantadmonished under the rule and unaware of the law contained insection 5--8--1(c) might unknowingly waive sentencing issues. See Little, 318 Ill. App. 3d 75, 743 N.E.2d 594; see also Corrie,294 Ill. App. 3d 496, 690 N.E.2d 128. However, since such adefendant could still obtain direct review of plain errors in hissentence, the unamended Rule 605(a) admonishments did not, ipsofacto, deny fundamental fairness. See Little, 318 Ill. App. 3d75, 743 N.E.2d 594.

In this case, the admonishments given by the trial courtcomplied with the version of Rule 605(a) in effect at the timedefendant was sentenced. Defendant does not claim that the trialcourt erred in imposing sentence. Nor has he shown that thetrial court's admonishments under the unamended rule resulted inany prejudice to him. We cannot say that fundamental fairnessrequires further admonishments. See Bailey, 311 Ill. App. 3d265, 724 N.E.2d 1032; Little, 318 Ill. App. 3d 75, 743 N.E.2d594. Accordingly, we hold that a remand to the trial court isnot warranted.

The judgment of the circuit court of Tazewell County isaffirmed.

Affirmed.

HOLDRIDGE and BARRY, JJ., concur.