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Docket No. 96839-Agenda 8-May 2004.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ALAN
W. BREEDLOVE, Appellant.

Opinion filed December 16, 2004.

JUSTICE GARMAN delivered the opinion of the court:

Following a jury trial in the circuit court of Tazewell County inMay 2001, defendant Alan W. Breedlove was convicted of first degreemurder (720 ILCS 5/9-1(a)(1) (West 2000)). In August 2001, he wassentenced to 50 years' imprisonment. Upon imposing sentence, thetrial court admonished defendant in accordance with Supreme CourtRule 605(a) (188 Ill. 2d R. 605(a)), which required the court toinform a defendant that, among other things, he had a right to anappeal and that he must file a notice of appeal in the trial court within30 days of sentencing to preserve this right.

Under the rule in effect at the time, the trial court was notrequired to admonish a defendant of either the statutory requirementthat a "challenge to the correctness of a sentence or to any aspect ofthe sentencing hearing shall be made by a written motion filed within30 days following the imposition of sentence" (730 ILCS 5/5-8-1(c)(West 2000)) or the rule that sentencing issues not preserved by thefiling of a written postsentencing motion in compliance with section5-8-1(c) would be considered waived (People v. Reed, 177 Ill. 2d389, 395 (1997)).

This court subsequently amended Rule 605(a) to require theadditional admonishments regarding the need to file a timelypostsentencing motion and the resulting waiver for failure to do so.The amended rule took effect on October 1, 2001, two months afterdefendant was sentenced. Official Reports Advance Sheet No. 21(October 17, 2001), R. 605(c), eff. October 1, 2001.

Defendant did not file a postsentencing motion. On appeal, heraised no issues with regard to his trial or sentencing. Rather,defendant argued only that fundamental fairness required that thecause be remanded to the trial court for further admonishmentsconsistent with amended Rule 605(a), thus providing him with anadditional opportunity to file a postsentencing motion. The appellatecourt rejected this claim, finding that the admonishments given by thetrial court complied with the version of the rule in effect at the timeand, although he was not advised that sentencing issues not raised ina postsentencing motion would be waived, he was not misinformed ormisled by the admonishments he was given. In addition, the appellatecourt concluded that, waiver notwithstanding, defendant could stillobtain review of any plain error in sentencing. However, becausedefendant did not claim any error in sentencing, plain error analysiswas not necessary. 342 Ill. App. 3d 924. This court granteddefendant's petition for leave to appeal (177 Ill. 2d R. 315), and wenow affirm.

Because the question presented is purely one of law, we reviewthe appellate court's decision de novo. People v. Caballero, 206 Ill.2d 65, 87-88 (2002).

At oral argument, defendant argued, for the first time, that the2001 amendment to Rule 605(a), which added the requirement thatdefendants be admonished of the need to file a postsentencing motionto preserve sentencing issues, should be applied retroactively to thosedefendants whose appeals were pending as of its October 1, 2001,effective date. He offered no authority for retroactive application ofthe amended rule. This retroactivity argument was neither madebefore the appellate court nor raised in defendant's petition for leaveto appeal. As such, it is waived. People v. Donoho, 204 Ill. 2d 159,169 (2003).

In making his arguments in this appeal, defendant draws ananalogy between his situation and that of a defendant who entered anopen guilty plea under former Rule 605(b) (188 Ill. 2d R. 605(b)).Some background is in order. Prior to its amendment on November1, 2000, Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d)) providedthat "[n]o appeal from a judgment entered upon a plea of guilty shallbe taken unless the defendant, within 30 days of the date on whichsentence is imposed, files in the trial court a motion to reconsider thesentence, if only the sentence is being challenged, or, if the plea isbeing challenged, a motion to withdraw the plea of guilty and vacatethe judgment." To ensure that guilty plea defendants were informedof these requirements, the trial court was required to give theadmonishments contained in Rule 605(b) regarding the right to appeal.Those admonishments told defendants, in relevant part, that prior totaking an appeal, they must file within 30 days of sentencing a writtenmotion to reconsider the sentence or to have the judgment vacatedand for leave to withdraw the guilty plea. However, in People v.Evans, 174 Ill. 2d 320, 332 (1996), this court held that the motion-to-reconsider-sentence clause of Rule 605(b) applied only to open guiltypleas. A defendant who had negotiated a plea as to charging andsentencing with the State was required to file a motion to withdrawhis guilty plea. Subsequent cases refined this requirement. See, e.g.,People v. Lumzy, 191 Ill. 2d 182, 187 (2000) (where no agreement asto sentencing is made, defendant not required to seek to withdrawguilty plea as a prerequisite to challenging the sentence); People v.Clark, 183 Ill. 2d 261, 268 (1998) (defendant who seeks to challengeonly the consecutive aspect of his sentence must file motion towithdraw guilty plea where the plea was entered pursuant to anegotiated plea); Linder, 186 Ill. 2d at 74 (where defendant pleadsguilty in exchange for dismissal of certain charges and recommendedsentencing cap, he must move to withdraw his guilty plea). We alsoheld in Linder that where a defendant fails to comply with the motionrequirements of Rule 604(d), the appellate court must dismiss theappeal. Linder, 186 Ill. 2d at 74. As of November 1, 2000, Rule605(b) was amended to provide different forms of advice fordefendants who had negotiated some aspect of their sentence and forthose who had not. Official Reports Advance Sheet No. 23(November 15, 2000), Rs. 605(b)(2), (c)(2), eff. November 1, 2000.However, in the interim, defendants who entered negotiated pleas asto their sentences received incorrect advice. They were told that theycould either move to withdraw their guilty pleas or move toreconsider their sentences. Those defendants had their cases remandedfor proper admonishments because they had been affirmatively misledby the trial court's advice, even though the admonishments were inaccordance with the version of the rule then in effect. See People v.Diaz, 192 Ill. 2d 211, 227 (2000); People v. Clark, 183 Ill. 2d 261,270 (1998); People v. Leahy, 322 Ill. App. 3d 974, 975-76 (2001)(collecting cases). Defendant believes he should receive the samebenefit. We now address his arguments.

A conflict exists among some districts of our appellate courtregarding the question of whether a defendant who was properlyadmonished under preamended Rule 605(a) is entitled on some basisto a remand for admonishment under the amended rule. Like theappellate court in the instant case, the court in People v. Little, 318 Ill.App. 3d 75 (2001), declined to remand for admonishment underamended Rule 605(a), rejecting the defendant's due process claim.The court noted that the language of the preamended rule was plainand unambiguous and that, in contrast to guilty plea defendantsadmonished under preamended Rule 605(b), the defendant was notmisled as to what type of motion was required. The court also notedthat plain error review was always available to Rule 605(a) defendantswho failed to preserve sentencing issues for review. Little, 318 Ill.App. 3d at 80.

A contrary result was reached by the court in People v. Mazar,333 Ill. App. 3d 244 (2002). There, the defendant was admonishedunder preamended Rule 605(a). On appeal, although he did not claimany error in his sentence, the defendant argued that the failure toadmonish him of the need to file a postsentencing motion deprivedhim of due process, analogizing the situation to the failure to properlyadmonish guilty plea defendants under preamended Rule 605(b). TheMazar court rejected this argument, concluding that no duty existedto admonish defendants under Rule 605(a) of the need to file apostsentencing motion and that the rule did not misinform defendantsof their appeal rights, as it was merely silent on that issue. Mazar, 333Ill. App. 3d at 257. Nonetheless, the court did remand the defendant'scase for admonishment under amended Rule 605(a). The court notedthe amendment of the rule and cited cases decided under preamendedRule 605(b) holding that remand for proper admonishments wasrequired under principles of fundamental fairness (e.g., Leahy, 322 Ill.App. 3d 974). The Mazar court held that a remand for admonishmentsunder now amended Rule 605(a) was supported by the same "generalequitable principles." The court concluded that the defendant was"misinformed" as to all the steps necessary to preserve issues forappeal and that fundamental fairness required a remand foradmonishment under the new rule. Mazar, 333 Ill. App. 3d at 259.

Defendant relies heavily on Mazar in his due process argument.However, as stated, the Mazar court found no due process violationin failing to admonish the defendant under the preamended rule of theneed to file a postsentencing motion. Defendant argues that dueprocess was abridged because the rule did not accurately apprise himof the necessary steps to perfect his appeal, citing People v. Bates,323 Ill. App. 3d 77 (2001). That case, however, involved a defendantwho pleaded guilty and who received incorrect admonishments underRule 605(b). The trial court had told defendant that he would have tomove to withdraw his guilty plea and risk reinstatement of dismissedcharges when in fact he could have moved to reconsider the sentencewithout that risk. Bates, 323 Ill. App. 3d at 81. In contrast, the trialcourt in the instant case accurately advised defendant of the steps toperfect his appeal. Supreme Court Rule 606 (188 Ill. 2d R. 606)governs the perfection of appeals in criminal cases not involving guiltypleas. That rule requires a notice of appeal to be filed with the clerkof the circuit court within 30 days after entry of the judgmentappealed from or within 30 days after entry of an order disposing ofa timely postjudgment motion. 188 Ill. 2d R. 606(b). Defendantappears to equate "perfection" of an appeal with advice as to everystep necessary to preserve issues for appellate review. However, it iscertainly possible to properly perfect one's appeal, yet waive everyissue claimed as error. The waiver does not affect the perfection of theappeal.

Due process does not require that a defendant be admonished ofthe right to an appeal. People v. Cox, 53 Ill. 2d 101, 106 (1972),overruled on other grounds, People v. Davis, 156 Ill. 2d 149 (1993).Defendant's situation is unlike that of guilty plea defendants who weregiven the wrong advice as to how to perfect their appeals. Filing ofthe proper postplea motion is a condition precedent to the perfectionof their appeals. When those defendants were given wrong advice andfollowed it, their appeals were dismissed. We note that not all thesteps necessary to preserve every alleged error are contained in thesupreme court rules. The requirement to file a postsentencing motionis statutory in nature (730 ILCS 5/5-8-1(c) (West 2000)). Similarly,the requirement of filing a written posttrial motion is imposed bystatute (725 ILCS 5/116-1 (West 2000)). This court has held thatfailure to object at trial and include the issue in a written posttrialmotion results in waiver of the alleged error on review. People v.Enoch, 122 Ill. 2d 176, 186 (1988). At that point, the only reviewavailable to a defendant arises from any plain error, just as it doeswhen a defendant fails to properly preserve sentencing errors forreview. We do not understand defendant to suggest that due processrequires that the trial court interrupt the trial at various points toadvise a defendant of the need to make objections, make offers ofproof, etc., in order to preserve issues for review. Such a scenariowould obviously be absurd. Due process does not require courts to goto such lengths. Here, the failure to admonish defendant and otherslike him as to how to preserve sentencing issues for appeal when Rule605(a) did not include a requirement to give such an admonishmentdid not deprive defendant of due process. Accordingly, we concludethat due process does not require remand for admonishment underamended Rule 605(a).

Defendant also argues that application of the preamended rule inhis case violates the equal protection guarantees of the state andfederal constitutions (U.S. Const., amend. XIV,