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6 December 2000

JUSTICE McCULLOUGH delivered the opinion of the court:

Defendant Tejpaul Singh Jogi appeals from the May 1998 order of the circuit courtof Champaign County denying his November 1997 petition for relief pursuant to the Post-ConvictionHearing Act (725 ILCS 5/122-1 through 122-8 (West 1996)) following an evidentiary hearing. Inthe underlying action, defendant pleaded guilty to aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 1994)), and the trial court sentenced him to 12 years' imprisonment. Defendantentered the partially negotiated guilty plea pursuant to negotiations in which the State agreed torequest a sentence of no more than 25 years. Defendant filed a motion to reconsider his sentence butdid not file a motion to withdraw the guilty plea. This court affirmed the conviction and sentence. People v. Jogi, 291 Ill. App. 3d 1142 (September 24, 1997) (unpublished order underSupreme Court Rule 23) (No. 4-96-0995).

In his direct appeal, defendant attempted to raise the issue of his sentence beingexcessive. Because defendant failed to file a motion to withdraw his partially negotiated guilty plea,the issue was deemed waived on the basis of the rationale in People v. Evans, 174 Ill. 2d 320, 332,673 N.E.2d 244, 250 (1996), and People v. Catron, 285 Ill. App. 3d 36, 37, 674 N.E.2d 141, 142(1996). People v. Jogi, slip order at 2-3. Subsequently, the Supreme Court of Illinois, citing Catronwith approval, decided that a defendant who pleaded guilty pursuant to a partially negotiated guiltyplea may not raise on appeal the issue of whether his sentence is excessive unless he moves towithdraw his guilty plea, and the failure to do so requires the appellate court to dismiss the appeal. People v. Linder, 186 Ill. 2d 67, 74, 708 N.E.2d 1169, 1172-73 (1999).

In this appeal from the denial of the postconviction petition, defendant argues thiscause should be remanded to allow him to file a motion to withdraw his partially negotiated guiltyplea because he was denied due process and the right to appeal. In our original decision, weaffirmed. People v. Jogi, 308 Ill. App. 3d 302, 719 N.E.2d 798 (1999). However, the supreme courtin the exercise of its supervisory authority has vacated our original disposition and directed this courtto reconsider the cause in light of its recent decision in People v. Diaz, 192 Ill. 2d 211, 735 N.E.2d605 (2000). People v. Jogi, 191 Ill. 2d 547 (2000) (nonprecedential supervisory order). We findDiaz supportive of our original decision and continue to affirm.

Defendant argues that, since he filed a motion to reconsider the sentence rather thana motion to withdraw the guilty plea consistent with the admonitions he was given after pleadingguilty, it was a constitutional violation for this court to refuse to consider on the merits the issue ofthe excessiveness of the sentence. We disagree. As the analysis in Linder demonstrates (Linder, 186Ill. 2d at 74, 708 N.E.2d at 1172-73), this court reached the correct result (refusal to consider theissue), although for the wrong reason (waiver). Linder clearly indicates that this court was withoutauthority to entertain that issue and could not have granted the relief sought on direct appeal. Theactions of this court did not violate defendant's rights to due process or to appeal.

Diaz followed and applied the rationale in Linder. Diaz, 192 Ill. 2d at 222-23, 735N.E.2d at 610-11. In Diaz, the supreme court explicitly stated that a motion to withdraw a guiltyplea is required whenever the State makes a sentencing concession as part of the plea agreement. Diaz, 192 Ill. 2d at 225, 735 N.E.2d at 612.

We note that defendant does not raise in this appeal an issue concerning ineffectiveassistance of appellate counsel on direct appeal in failing to raise an issue of the ineffectiveness oftrial counsel based on the failure to file a motion to withdraw the guilty plea. See People v. Salazar,162 Ill. 2d 513, 520, 643 N.E.2d 698, 702 (1994) (the question of the effectiveness of appellatecounsel on direct appeal may appropriately be addressed in a postconviction proceeding). Defendantdid allege in his postconviction petition that his trial counsel was ineffective for filing a motion toreconsider the sentence instead of a motion to withdraw the guilty plea. On appeal, defendantconcedes the trial court correctly rejected this claim because the supreme court's decision in Evans,174 Ill. 2d at 332, 673 N.E.2d at 244 (requiring the filing of a motion to withdraw a negotiated guiltyplea in order for an excessive sentence issue to be raised), was decided and not published until afterdefendant had filed his motion to reconsider the sentence. Even assuming defendant has not waivedthe issue of ineffective assistance of trial counsel by failing to raise it on direct appeal (see Peoplev. Tenner, 175 Ill. 2d 372, 378, 677 N.E.2d 859, 862 (1997) (issues that could have been raised ondirect appeal but were not are waived for purposes of postconviction proceedings)), the Linderdecision rejected the reasoning relied on by defendant in his concession. Linder, 186 Ill. 2d at 75,708 N.E.2d at 1173.

In this case, defendant pleaded guilty on July 9, 1996; the trial court sentenced himon August 29, 1996; the public defender filed the motion to reconsider the sentence on behalf ofdefendant on September 11, 1996, and private counsel entered an appearance on behalf of defendanton November 12, 1996; and the trial court denied it on November 22, 1996. The Evans opinion wasfiled on September 19, 1996. Evans, 174 Ill. 2d 320, 673 N.E.2d 244. As stated in Linder, whenEvans was announced it applied to all cases then pending and this court had no authority to findotherwise. Linder, 186 Ill. 2d at 75, 708 N.E.2d at 1173.

Defendant also contends that he was denied due process because the admonitionsgiven after he pleaded guilty, although conforming to Supreme Court Rule 605(b) (145 Ill. 2d R.605(b)), did not conform to the principles announced in Evans and Catron. Defendant also arguesthis violated his right to appeal pursuant to section 6 of article VI of the Illinois Constitution of 1970(Ill. Const. 1970, art. VI,