People v. Bates

• Decision Date: 06 June 2001
• Docket Number: No. 1-98-4491.,1-98-4491.
• Citation: 751 N.E.2d 180,323 Ill. App.3d 77,256 Ill.Dec. 127
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Marcus BATES, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

751 N.E.2d 180

323 Ill. App.3d 77

256 Ill.Dec. 127

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Marcus BATES, Defendant-Appellant.

No. 1-98-4491.

Appellate Court of Illinois, First District, Third Division.

June 6, 2001.

Michael J. Pelletier, Deputy Defender, Michael H. Orenstein, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, for Appellant.

Richard A. Devine, State's Attorney, Renee Goldfarb, William Toffenetti, Manny Magence, Assistant State's Attorneys, Chicago, for Appellee.

Presiding Justice HALL delivered the opinion of the court:

The defendant, Marcus Bates, appeals from the dismissal of his petition for relief pursuant to the Post Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 1998)). The circuit court of Cook County found that there was no merit to the defendant's allegations. The defendant appeals. We reverse the order of the circuit court and remand for further proceedings.

On July 19, 1991, the defendant, then 15 years old, was charged as an adult with two counts of first degree murder, felony murder, conspiracy to commit first degree murder, conspiracy to commit armed robbery and attempted armed robbery. On February 14, 1992, the State dismissed the conspiracy-to-commit-first-degree-murder charge. On February 19, 1992, the defendant pleaded guilty to the three murder counts and the attempted-armed-robbery count and was sentenced to terms of 50 years for murder and 15 years for attempted armed robbery. The sentences were to be served concurrently. On March 4, 1992, after pronouncing sentence, the trial court admonished the defendant as follows:

"I will advise you that you have a right of appeal. Before you may perfect that appeal, Mr. Bates, you or someone on your behalf must file within 30 days from today a paper, and that paper service is called a motion. In that motion, you must demonstrate why I should give you leave or permission to withdraw your plea of guilty. If I grant your motion, you may again be prosecuted for first degree murder, conspiracy to commit murder and attempt armed robbery once again * * *."

The defendant did not file any postplea motions, nor did he file an appeal from his convictions and sentences. However, on September 29, 1998, he filed a postconviction petition in which he alleged that the sentences imposed were excessive and that the trial court did not consider his rehabilitative potential. He also filed a motion for leave to file a late petition. As set forth in the petition and the motion, the defendant maintained that his late filing should be excused because there are no provisions for juveniles under the Act and because he was originally confined to a juvenile facility and lacked legal assistance and access to a law library. The trial court denied the petition solely on the basis that it lacked merit.

At the outset, the State contends that the defendant's petition was not filed in accordance with the limitation periods set forth in the Act, and since the defendant failed to demonstrate that his failure to timely file his petition was not due to his culpable negligence, the trial court properly could have dismissed the petition on that basis as well.

Since the defendant did not file an appeal in this case, he was required to file his postconviction petition no later than three years from the date of his conviction, or March 4, 1995. See 725 ILCS 5/122-1(c) (West 1998). Since the defendant did not file his petition until over three years after March 4, 1995, the State concludes that his petition is untimely and that its dismissal should be affirmed.

The State may not raise the issue of timeliness of the petition for the first time on appeal. People v. Wright, 189 Ill.2d 1, 11, 243 Ill.Dec. 198, 723 N.E.2d 230, 236 (1999). Our supreme court explained that allowing the State to raise the issue for the first time on appeal prevents a petitioner from having the opportunity to amend his petition to include facts showing that his failure to timely file his petition was not due to his culpable negligence. Wright, 189 Ill.2d at 11, 243 Ill.Dec. 198, 723 N.E.2d at 236. Therefore, the issue of the untimeliness of the defendant's petition is not properly before us. Likewise, the issue of whether the State has waived the issue as to the untimeliness of the defendant's petition for purposes of further proceedings is not properly before us.

We turn now to the merits of the defendant's petition.

The Illinois Post-Conviction Hearing Act provides a mechanism by which those under criminal sentence in this state can assert that their convictions were the result of a substantial denial of their rights under the United States Constitution or the Illinois Constitution or both. People v. Coleman, 183 Ill.2d 366, 378-79, 233 Ill.Dec. 789, 701 N.E.2d 1063, 1070-71 (1998); see 725 ILCS 5/122-1 (West 1998). The general requirement that a postconviction petitioner set forth the gist of a meritorious claim means that he must allege sufficient facts from which the circuit court could find a valid claim of deprivation of a constitutional right. People v. Arias, 309 Ill.App.3d 595, 597, 243 Ill.Dec. 91, 722 N.E.2d 1160, 1162 (1999). The appropriate standard of review is plenary. Coleman, 183 Ill.2d at 389, 233 Ill. Dec. 789, 701 N.E.2d at 1075.

In his postconviction petition, the defendant alleged that his constitutional rights had been violated in that the sentence he received was excessive and that the trial court failed to consider his rehabilitative potential. The State responds that an allegation that a sentence, although within statutory grounds, is excessive is not cognizable under the Act. See People v. Ballinger, 53 Ill.2d 388, 390, 292 N.E.2d 400, 401 (1973).

However, on appeal, the defendant has abandoned his excessive-sentence argument and now contends, for the first time, that the trial court's failure to properly admonish him as to the procedures for taking an appeal following his guilty plea violated his constitutional rights. The defendant argues that the trial court incorrectly admonished him that if he wished to appeal from his guilty plea, he must first move to vacate his guilty plea, which, if successful, would result in the reinstatement of all charges against him, including the one dismissed by the State, when in fact the defendant could have filed a motion to reconsider only his sentence.

Any claim of substantial denial of constitutional rights not raised in the original or amended petition is waived. People v. Davis, 156 Ill.2d 149, 158, 189 Ill.Dec. 49, 619 N.E.2d 750, 755 (1993). Where fundamental fairness so requires, however, strict adherence to the rule of waiver may be avoided. Davis, 156 Ill.2d at 158, 189 Ill.Dec. 49, 619 N.E.2d at 755.

Supreme Court Rule 604(d) sets forth the procedure a defendant must follow in order to perfect an appeal from a guilty plea. 188 Ill. 2d R. 604(d). Supreme Court Rule 605(b) contains the admonishments the trial court must give to a defendant to assure that the defendant is aware of the procedures he must follow in order to perfect an appeal from a guilty plea. 188 Ill. 2d R. 605(b).

The defendant entered his plea of guilty on February 19, 1992, and was sentenced on March 4, 1992. At the time of his plea and sentence, Rule 605(b) provided in pertinent part as follows:

"In all cases in which a judgment is entered upon a plea of guilty, at the time of imposing sentence, the trial court shall advise the defendant substantially as follows:

* * *

(2) that prior to taking an appeal he must file in the trial court, within 30 days of the date on which sentence is imposed, a written motion asking to have the judgment vacated and for leave to withdraw his plea of guilty, setting forth his grounds for the motion * * *." 134 Ill. 2d 605(b).

Therefore, the trial court's Rule 605(b) admonitions to the defendant conformed to Rule 605(b) at the time of the defendant's sentencing.

However, while the trial court's admonishments conformed to Rule 605(b) as it was then written, they were not in accordance with the supreme court's interpretation of Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)) in People v. Wallace, 143 Ill.2d 59, 155 Ill.Dec. 821, 570 N.E.2d 334 (1991), and People v. Wilk, 124 Ill.2d 93, 124 Ill.Dec. 398, 529 N.E.2d 218 (1988). In Wilk, the supreme court held that a defendant wishing only to challenge his sentence on appeal need not file a motion to withdraw his guilty plea. Wilk, 124 Ill.2d at 110, 124 Ill.Dec. 398, 529 N.E.2d at 224. Instead, if a defendant is complaining only about his sentence, it is sufficient that he file a motion attacking only the sentence prior to appeal. Wallace, 143 Ill.2d at 60-61, 155 Ill.Dec. 821, 570 N.E.2d at 335. Following the decisions in Wallace and Wilk, Rule 604(d) (as well as Rule 605(b)) was amended to allow the filing of a motion to reconsider the sentence where only the sentence is being challenged. People v. Evans, 174 Ill.2d 320, 331, 220 Ill.Dec. 332, 673 N.E.2d 244, 249 (1996).

The State points out that failure to advise a defendant of the right to an appeal is not a denial of due process or of equal protection. People v. Cox, 53 Ill.2d 101, 106, 291 N.E.2d 1, 4 (1972) overruled on other grounds by Davis, 156 Ill.2d 149, 189 Ill.Dec. 49, 619 N.E.2d 750. However, in this case, the trial court went further than failing to advise the defendant of his right to appeal. The trial court wrongly advised the defendant that in order to exercise his right to an appeal, he would have to risk the reinstatement of the dismissed charges, when, in fact, he could have moved for reconsideration of his sentence without a detrimental impact on his guilty plea.

Although not in the context of a postconviction proceeding, other districts have found that "misinformation" from the sentencing judge, even though the admonitions were in compliance with Rule 605(b), would be violative of a defendant's rights to due process if...