Find Legal Information

16 August 2000

NO. 4-98-0423

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

JUSTICE KNECHT delivered the opinion of the court:

In August 1995, defendant, Nathaniel Harper, entered apartially negotiated guilty plea to first degree murder (720 ILCS5/9-1(a)(2) (West 1994)). The trial court sentenced defendant to50 years' imprisonment. Defendant appeals, arguing (1) his trialcounsel did not file the required Supreme Court Rule 604(d)certificate (145 Ill. 2d R. 604(d)) and (2) the trial court did notproperly admonish him pursuant to Supreme Court Rule 605(b) (145Ill. 2d R. 605(b)). Defendant asks this court to remand the causeto allow compliance with Rule 604(d) and to require proper Rule605(b) admonishments. The State concedes the absence of a Rule604(d) certificate requires remand but maintains the trial courtgave proper Rule 605(b) admonitions so defendant need not bereadmonished under Rule 605(b). We disagree and remand with directions.

In May 1995, defendant and his paramour and roommate,Frances Meyers, returned to their garage apartment following abirthday party. Defendant and Meyers drank alcohol and usedcocaine throughout the day. Early the next morning, defendant andMeyers argued. During the argument, defendant repeatedly struckMeyers with a shovel, killing her.

In August 1995, defendant entered a negotiated guiltyplea to first degree murder as charged in count I (in that, withoutlawful justification, he struck decedent in the head and arms witha shovel, knowing such acts created a strong probability of greatbodily harm to her, thereby causing her death), and the Statedismissed count II (murder while committing a forcible felony,aggravated battery) and agreed to limit its sentencing recommendation to 50 years' imprisonment.

According to the State's factual basis, a witness hearda woman screaming for 15 to 20 minutes, then the woman quitscreaming but started screaming again about 5 minutes later,although not as loud. About 15 minutes after the woman quitscreaming the second time, a black male pulled up the garage doortwo or three feet, slid under it and walked along a fence to thewest or front of the house. Shortly after 3 a.m., defendant called911 from the house at the same address.

Defendant made statements to various witnesses that thevictim was arguing with him and throwing beer bottles and he"snapped" and hit her with the shovel but did not know how manytimes he hit her. The police found the shovel in the garage withits handle broken and human blood and hair on it. A pathologistexamined the decedent's body and would testify to wounds andfractures covering the decedent's entire body, a high ethanol levelin her blood and urine, and a positive urine screen for cocaine.

On November 8, 1995, the trial court sentenced defendantto 50 years' imprisonment. After pronouncing the sentence, thetrial court admonished defendant as follows concerning his right toappeal:

"THE COURT: [Defendant], you have theright to appeal from the proceedings held heretoday.

In order to appeal, you must first filewithin [30] days a motion to withdraw yourguilty plea, setting forth in the motion allreasons for doing so.

If I allow that motion, any chargesdismissed could be reinstated and the casewould then be set for trial. If I deny yourmotion, you would then have [30] days toappeal my decision.

Any issue or claim of error not containedin your motion would be waived on appeal.

You could also appeal your sentencewithin [30] days of this date without filing amotion for leave to withdraw your plea ofguilty.

If you are indigent, the [c]ourt wouldappoint a lawyer to assist you with any ofthese matters, and a transcript of theseproceedings would be furnished at no cost toyou." (Emphasis added.)

Defendant said he did not understand his rights. The trial courtrepeated as above, and defendant then stated he understood hisrights.

On November 12, 1995, four days after sentencing,defendant's counsel filed a motion to reconsider sentence, arguingdefendant received an excessive sentence. On December 12, 1995,defendant filed a pro se motion to reconsider sentence, alleging(1) the court did not consider mitigating evidence, (2) substantialgrounds existed to support a conviction of manslaughter, (3) hisconduct was unlikely to recur, (4) he was misled by his attorneyabout the consequences of a guilty plea, and (5) he was mentallyunfit to understand the nature of the offense and to aid in hisdefense. In April 1998, the trial court appointed defendant newcounsel to avoid any conflict of interest based on defendant'sallegation his attorney misled him.

In June 1998, the trial court conducted a hearing ondefendant's motion to reconsider sentence. The trial court denieddefendant's motion, and this appeal followed.

Defendant's several related issues turn on case lawdevelopments with respect to the various types of guilty pleas (seePeople v. Linder, 186 Ill. 2d 67, 77-78, 708 N.E.2d 1169, 1174(1999) (Freeman, C.J., specially concurring) (outlining fourdistinct plea scenarios)).

A. Result of Failure To File Rule 604(d) Certificate

Dependent on Type of Guilty Plea

Supreme Court Rule 604(d) requires trial counsel tocertify he or she reviewed the proceedings, consulted withdefendant, and made any amendments to the motion necessary foradequate presentation of any defects in the plea or sentencingproceedings. 145 Ill. 2d R. 604(d). Normally, if counsel failedto satisfy the rule's certification requirement, a trial court'sdenial of a defendant's motion to reconsider must be reversed andthe cause must be remanded to the trial court to permit the filingof a new motion to reconsider and a new hearing on the motion. People v. Janes, 158 Ill. 2d 27, 35-36, 630 N.E.2d 790, 793-94(1994). However, if the defendant fails to comply with the motionrequirements of Rule 604(d), the appellate court must dismiss thedefendant's appeal, leaving the Post-Conviction Hearing Act (725ILCS 5/122-1 through 122-8 (West 1998)) as the only recourse. SeePeople v. Evans, 174 Ill. 2d 320, 332, 673 N.E.2d 244, 250 (1996). In Evans, the appellate court reversed and remanded thecause for a new sentencing hearing because trial counsel failed tofile a Rule 604(d) certificate. The Supreme Court of Illinoisreversed, finding defendant was not entitled to a reduction in hisnegotiated sentence because he failed to move to withdraw his pleaand vacate the judgment. The court held the motion-to-reconsider-sentence provisions of Rule 604(d) apply only to open guilty pleas. Evans, 174 Ill. 2d at 332-34, 673 N.E.2d at 250-51; see alsoLinder, 186 Ill. 2d at 74, 708 N.E.2d at 1173.

We acknowledge the opinion in People v. Shirley, 181 Ill.2d 359, 370-71, 692 N.E.2d 1189, 1195 (1998), but find itinapposite. Although that case involved a "'negotiated as tocharge and/or sentence' plea" (Linder, 186 Ill. 2d at 77, 708N.E.2d at 1174 (Freeman, C.J., specially concurring)), the supremecourt there chose to address defendant's request for a thirdhearing on defendant's claim his sentence was excessive. The courtconcluded requiring such a remand and hearing would be an empty andwasteful formality. The Shirley court chose to reject thisargument on the merits and not to reach the State's argument therelief defendant sought was not available to him given Evans.

Hence, our resolution of this issue turns on whether (1)defendant was required to file a motion to withdraw his guilty pleaand vacate the circuit court's judgment (in which case Evans andLinder require us to dismiss the appeal, unless some exceptionrequires a contrary result) or (2) defendant was entitled to filea motion to reconsider sentence, as he did (in which case Janeswould be controlling).

Motion To Withdraw His Plea?

If the plea agreement between defendant and the Stateinvolves only the dismissal of charges, i.e., "negotiated-as-to-charge" pleas, the defendant need only follow the motion-to-reconsider-sentence provision. People v. Lumzy, 191 Ill. 2d 182,187, 730 N.E.2d 20, 23 (2000). If some aspect of defendant'ssentence was part of the plea agreement, defendant must move towithdraw the guilty plea and vacate the judgment, even if he onlywants to challenge his sentence. Evans, 174 Ill. 2d at 332, 673N.E.2d at 250 (agreement to dismiss certain charges and recommendcertain sentence); People v. Clark, 183 Ill. 2d 261, 268, 700N.E.2d 1039, 1043 (1998) (agreement to recommend specific term ofimprisonment); Linder, 186 Ill. 2d at 74, 708 N.E.2d at 1172(agreement to sentencing cap). If the defendant fails to move towithdraw his plea and vacate the judgment, this court must dismissthe appeal. Linder, 186 Ill. 2d at 74, 708 N.E.2d at 1173.

In the present case, defendant's counsel filed a motionto reconsider sentence, alleging defendant's sentence was excessive. While defendant filed a pro se motion to reconsider sentencea month later, the defendant had no right to do so and it cannotserve as basis for this review. See People v. Handy, 278 Ill. App.3d 829, 836-37, 664 N.E.2d 1042, 1047 (1996). We note defendant'spro se motion included a claim defendant's counsel misled him aboutthe consequences of a guilty plea. Defendant withdrew this claimat the June 1998 hearing. At the hearing, defendant's new counseladvised the trial court he informed defendant the claim concerningprevious counsel misleading defendant should be brought in a motionto withdraw his plea, but defendant did not want to withdraw hisplea so he withdrew the claim. In addition, defendant's claimtrial counsel misled him is without merit. The trial courtproperly admonished defendant pursuant to Supreme Court Rule 402(134 Ill. 2d R. 402) and defendant stated he understood theadmonishments. Therefore, we consider only defendant's firstmotion to reconsider sentence, which alleged a general claim ofexcessive sentence. Defendant failed to move to withdraw hisguilty plea and vacate the judgment so, unless some exceptionapplies, we must dismiss defendant's appeal consistent with Linder.

In a related argument, defendant contends the trial courtdid not properly admonish him under Rule 605(b) and asks this courtto remand for proper admonishments.

Proper admonishments under Rule 605(b) ensure a defendantunderstands the proper procedure for appealing a sentence imposedon a guilty plea. People v. Foster, 171 Ill. 2d 469, 472, 665N.E.2d 823, 825 (1996). A court need not use the exact language ofRule 605(b). However, the court's admonitions cannot leave out ormisrepresent any of the rule's substance. People v. Anderson, 309Ill. App. 3d 417, 421, 722 N.E.2d 244, 247 (1999). If the trialcourt fails to properly admonish defendant pursuant to Rule 605(d),strict compliance by the defendant with Rule 604(d) is relaxed (the"admonition exception"). In such a case, the reviewing court isrequired to remand the cause to the trial court for strictcompliance with Rules 604(d) (Foster, 171 Ill. 2d at 474, 665N.E.2d at 826) and 605(b) (People v. Jamison, 181 Ill. 2d 24, 29-30, 690 N.E.2d 995, 998 (1998)).

Rule 605(b) states in pertinent part:

"In all cases in which a judgment isentered upon a plea of guilty, at the time ofimposing sentence, the trial court shalladvise the defendant substantially as follows:

(1) that he has a right toappeal;

(2) that prior to taking anappeal he must file in the trialcourt, within 30 days of the date onwhich sentence is imposed, a writtenmotion asking to have the trialcourt reconsider the sentence orhave the judgment vacated and forleave to withdraw his plea of guilty***;

(6) that in any appeal takenfrom the judgment on the plea ofguilty any issue or claim of errornot raised in the motion to reconsider the sentence or to vacate thejudgment and to withdraw his plea ofguilty shall be deemed waived." 145Ill. 2d R. 605(b).

Defendant contends the trial court did not state he mustfile a motion to withdraw his plea and to vacate the judgment, soit improperly admonished him. Defendant cites People v. Knowles,304 Ill. App. 3d 472, 710 N.E.2d 1238 (1999) (second district),People v. Foster, 308 Ill. App. 3d 286, 719 N.E.2d 1163 (1999)(third district), and People v. Wright, 311 Ill. App. 3d 1042, 725N.E.2d 811 (2000) (fifth district), in support of his argument. Inthese cases, the appellate court held a trial court's admonishmentstating defendant may file either a motion to reconsider sentenceor a motion to withdraw his plea and vacate judgment, afteragreeing to a negotiated plea, are insufficient. While theadmonishment meets the requirements of Rule 605(b) as presentlywritten, these courts concluded procedural fairness required remandfor "proper" Rule 605(b) admonishments (Wright, 311 Ill. App. 3dat 1048, 725 N.E.2d at 816 (plea negotiated as to charge and/orsentence, i.e., here a sentence cap; remanding for furtheradmonishment consistent with the rule enunciated in Evans andLinder); Knowles, 304 Ill. App. 3d at 475, 710 N.E.2d at 1240 (pleanegotiated as to charge and/or sentence, i.e., here negotiated asto charge, which reduced applicable sentencing range; remanded withdirections to admonish defendant of his right to file motion towithdraw guilty plea and consequences thereof)) or to afforddefendant the opportunity to file a motion to withdraw his plea ifhe so chose (Foster, 308 Ill. App. 3d at 290, 719 N.E.2d at 1165(plea negotiated as to charge and/or sentence and defendantapprised that consecutive sentences could not be imposed but courtordered a probation term to run consecutive to a prison term;modifying probation sentence to run concurrent to prison sentenceand remanding to allow defendant to file a motion to withdraw pleaif he so chose)).

This court, while understanding the concerns expressed byour sister districts, has refused to hold the same. We concludemodification of Rule 605(b) must come from the supreme court, notthis court. If the admonishments meet Rule 605(b) requirements,the defendant has been properly admonished and he is not entitledto a remand for new admonitions. People v. Harden, 311 Ill. App.3d 406, 413-14, 724 N.E.2d 566, 571 (2000).

In this case, however, the trial court's admonitions didnot follow Rule 605(b) verbatim or accurately convey the substanceof the rule. The trial court did not specifically state a motionto reconsider sentence as the alternative filing in its admonishment, nor did it apprise defendant any issue not included in sucha motion was thereby waived, i.e., forfeited. The trial court alsotold defendant that he could "appeal [his] sentence within [30]days without filing a motion for leave to withdraw [his] guiltyplea." (Emphasis added.) After filing his two intervening motionsto reconsider sentence, this is precisely what defendant did: hefiled an appeal challenging his sentence "without filing a motionfor leave to withdraw [his] plea of guilty." We conclude the trialcourt's admonitions did not convey the rule's substance. SeeAnderson, 309 Ill. App. 3d at 421, 722 N.E.2d at 247 (finding trialcourt did not accurately convey the substance of Rule 605(b)). Therefore, the admonition exception to Rule 604(d) applies andFoster and Jamison require remand for strict compliance with Rules604(d) and 605(b).

We remand with directions.

Remanded with directions.

COOK, P.J., and GARMAN, J., concur.