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No. 3--01--0804

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

The defendant, Bennie Stroud, pled guilty to possession of astolen vehicle (625 ILCS 5/4--103(a)(1) (West 1996)) (No. 97--CF--621) via closed circuit television and was sentenced to aprobationary term of two years. While on probation, the defendantwas found guilty of a subsequent offense (No. 98--CF--374) and hisprobation was revoked. The trial court sentenced the defendant toseven years in prison on each conviction. The defendant's directappeal was dismissed for lack of jurisdiction (People v. Stroud,No. 3--98--0981 (consolidated with No. 3--98--0982) (2000)(unpublished order under Supreme Court Rule 23)).

The defendant filed a postconviction petition which wasdismissed. The defendant now appeals from that dismissal, arguingthat his plea of guilty in case No. 97--CF--621 should be vacatedbecause it was entered over closed circuit television. He alsocontends that his sentence in case No. 98--CF--374 should bevacated and remanded for resentencing. We vacate the conviction incase No. 97--CF--621, vacate the sentence in case No. 98--CF--374and remand both causes for further proceedings.

On March 23, 1998, the defendant appeared via closed circuittelevision and pled guilty to the charge of possession of a stolenmotor vehicle (No. 97--CF--621). Pursuant to agreement, he wassentenced to two years' probation. The trial court admonished thedefendant of his appellate rights. He did not appeal hisconviction or sentence.

On July 1, 1998, the State filed a petition to revokeprobation, alleging that the defendant violated his probation bycommitting another offense. Subsequently, the defendant was foundguilty of unlawful possession of a controlled substance (720 ILCS570/402 (West 1998)) (No. 98--CF--374) and his probation in caseNo. 97--CF--621 was revoked. The trial court sentenced thedefendant to seven years' imprisonment for each offense. Based onhis prior felony conviction in case No. 97--CF--621, the defendantwas not eligible for probation in case No. 98--CF--374.

On direct appeal, the defendant claimed that his guilty pleain case No. 97--CF--621 should be vacated since he was notphysically present in the courtroom when the plea was entered. Wedismissed the appeal for lack of subject matter jurisdictionbecause the defendant did not file a timely motion to withdraw theplea. Stroud, No. 3--98--0981 (consolidated with No. 3--98--0982).

On November 22, 2000, the defendant filed a timelypostconviction petition, again arguing that his guilty plea shouldbe vacated because the trial court conducted the proceeding viaclosed circuit television rather than in person. He also askedthat his sentence in case No. 98--CF--374 be vacated and remandedfor resentencing. The State moved to dismiss the petition becausethe defendant failed to file a timely motion to withdraw his pleapursuant to Supreme Court Rule 604(d). 188 Ill. 2d R. 604(d). Thetrial court agreed and the petition was dismissed.

On appeal, the defendant argues that the trial court erred indismissing his postconviction petition because he failed to file atimely postplea motion. The State claims that the defendant waivedreview by failing to file a motion to withdraw his guilty pleapursuant to Supreme Court Rule 604(d).

The State's contention that the defendant cannot challenge hisguilty plea on collateral review is misplaced. Rule 604(d)provides that no appeal from a judgment entered upon a guilty pleashall be taken unless the defendant files a motion to withdraw hisplea within 30 days of that judgment. 188 Ill. 2d R. 604(d). Apetition filed under the Post-Conviction Hearing Act (725 ILCS5/122--1 et seq. (West 2000)) is not a direct appeal; it is acollateral attack on a prior judgment. This court has consistentlyheld that the direct appeal requirements of Rule 604(d) do notapply to postconviction proceedings. People v. Stein, 255 Ill.App. 3d 847, 625 N.E.2d 1151 (1993); People v. Brumas, 142 Ill.App. 3d 178, 491 N.E.2d 773 (1986); see also People v. Miranda, No.1--99--3613 (April 29, 2002). Since Rule 604(d) has noapplication, the defendant's failure to move to withdraw his pleadoes not result in a waiver of his constitutional claim.

Nevertheless, the State relies on People v. Speed, 318 Ill.App. 3d 910, 743 N.E.2d 1084 (2001) in support of its argument thatthe defendant is foreclosed from attacking the plea because hefailed to address the issue in a timely direct appeal. In Speed,the defendant attempted to vacate his guilty plea on direct appeal. We held that the appellate court lacked jurisdiction to considerthe issue because Speed did not follow the requirements of Rule604(d). People v. Speed, 318 Ill. App. 3d 910, 743 N.E.2d 1084.

Here, the defendant filed a timely postconviction petition,(See 725 ILCS 5/122-1(c) (West 2000); People v. Bates, 323 Ill.App. 3d 77, 751 N.E.2d 180 (2001)); in it, he claimed that histelevised guilty plea substantially violated his constitutionalrights. As a result, the postconviction petition provides thiscourt with jurisdiction to review the defendant's claim. Althoughthe defendant was barred from challenging his plea on directappeal, nothing prevents him from collaterally attacking his pleaon constitutional grounds.

The remaining question is whether the acceptance of the guiltyplea over closed circuit television violated the defendant'sconstitutional rights.

Rule 402 states that "[t]he court shall not accept a plea ofguilty *** without first, by addressing the defendant personally inopen court, informing him of and determining that he understands[specific admonitions]." 177 Ill. 2d R. 402. The entry of aguilty plea is a critical stage of the proceedings against adefendant. Guttendorf, 309 Ill. App. 3d 1044, 723 N.E.2d 838. This court has recently confirmed that the right to be physicallypresent when entering a guilty plea is a substantial constitutionalright. Guttendorf, 309 Ill. App. 3d 1044, 723 N.E.2d 838. Consequently, a guilty plea hearing on closed circuit televisiondenies the defendant a substantial right and deprives him offundamental fairness. Guttendorf, 309 Ill. App. 3d 1044, 723N.E.2d 838.

Here, the defendant pled guilty over closed circuit televisionand was denied the substantial right to be present at a criticalstage of his conviction proceeding. We therefore vacate thedefendant's conviction in case No. 97--CF--621 and remand the causefor further proceedings. See Guttendorf, 309 Ill. App. 3d 1044,723 N.E.2d 838.

The defendant also appeals his sentence in case No. 98--CF--374. He claims that because his conviction in case No. 97--CF--621should be vacated, his sentence in case No. 98--CF--374 should bevacated and remanded for resentencing to allow the trial court toconsider a term of probation. We agree. At sentencing in case No.98--CF--374, the defendant was found ineligible for probation dueto his prior felony conviction in case No. 97--CF--621. Since theconviction in case No. 97--CF--621 no longer exists, we vacate thesentence in case No. 98--CF--374 and remand the cause forresentencing.

For the reasons stated, we vacate the conviction in case No.97--CF--621 and remand for further proceedings. The sentence incase No. 98--CF--374 is vacated and the cause is remanded forresentencing.

No. 97--CF--621, Judgment vacated; cause remanded.

No. 98--CF--374, Sentence vacated; cause remanded.

McDADE and SLATER, JJ., concur.