People v. Breedlove

• Decision Date: 16 December 2004
• Docket Number: No. 96839.,96839.
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Alan W. BREEDLOVE, Appellant.
• Court: Illinois Supreme Court

821 N.E.2d 1176

213 Ill.2d 509

290 Ill.Dec. 602

The PEOPLE of the State of Illinois, Appellee, v. Alan W. BREEDLOVE, Appellant.

No. 96839.

Supreme Court of Illinois.

December 16, 2004.

Robert J. Agostinelli, Deputy Defender, and Jeremy B. Harris, Assistant Defender, of the Office of the State Appellate Defender, Ottawa, for appellant.

Lisa Madigan, Attorney General, Springfield, and Stewart Umholtz, State's Attorney, Pekin (Gary Feinerman, Solicitor General, and Linda D. Woloshin and Jonathan J. Silbermann, Assistant Attorneys General, Chicago, of counsel), for the People.

James K. Leven, Chicago, amicus curiae pro se.

Justice GARMAN delivered the opinion of the court:

Following a jury trial in the circuit court of Tazewell County in May 2001, defendant Alan W. Breedlove was convicted of first degree murder (720 ILCS 5/9-1(a)(1) (West 2000)). In August 2001, he was sentenced to 50 years' imprisonment. Upon imposing sentence, the trial court admonished defendant in accordance with Supreme Court Rule 605(a) (188 Ill.2d R. 605(a)), which required the court to inform a defendant that, among other things, he had a right to an appeal and that he must file a notice of appeal in the trial court within 30 days of sentencing to preserve this right.

Under the rule in effect at the time, the trial court was not required to admonish a defendant of either the statutory requirement that a "challenge to the correctness of a sentence or to any aspect of the sentencing hearing shall be made by a written motion filed within 30 days following the imposition of sentence" (730 ILCS 5/5-8-1(c) (West 2000)) or the rule that sentencing issues not preserved by the filing of a written postsentencing motion in compliance with section 5-8-1(c) of the Unified Code of Corrections would be considered waived (People v. Reed, 177 Ill.2d 389, 395, 226 Ill.Dec. 801, 686 N.E.2d 584 (1997)).

This court subsequently amended Rule 605(a) to require the additional admonishments regarding the need to file a timely postsentencing motion and the resulting waiver for failure to do so. The amended rule took effect on October 1, 2001, two months after defendant 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, he raised no issues with regard to his trial or sentencing. Rather, defendant argued only that fundamental fairness required that the cause be remanded to the trial court for further admonishments consistent with amended Rule 605(a), thus providing him with an additional opportunity to file a postsentencing motion. The appellate court rejected this claim, finding that the admonishments given by the trial court complied with the version of the rule in effect at the time and, although he was not advised that sentencing issues not raised in a postsentencing motion would be waived, he was not misinformed or misled by the admonishments he was given. In addition, the appellate court concluded that, waiver notwithstanding, defendant could still obtain review of any plain error in sentencing. However, because defendant did not claim any error in sentencing, plain error analysis was not necessary. 342 Ill.App.3d 924, 277 Ill.Dec. 194, 795 N.E.2d 862. This court granted defendant's petition for leave to appeal (177 Ill.2d R. 315), and we now affirm.

Because the question presented is purely one of law, we review the appellate court's decision de novo. People v. Caballero, 206 Ill.2d 65, 87-88, 276 Ill.Dec. 356, 794 N.E.2d 251 (2002).

At oral argument, defendant argued, for the first time, that the 2001 amendment to Rule 605(a), which added the requirement that defendants be admonished of the need to file a postsentencing motion to preserve sentencing issues, should be applied retroactively to those defendants whose appeals were pending as of its October 1, 2001, effective date. He offered no authority for retroactive application of the amended rule. This retroactivity argument was neither made before the appellate court nor raised in defendant's petition for leave to appeal. As such, it is waived. People v. Donoho, 204 Ill.2d 159, 169, 273 Ill.Dec. 116, 788 N.E.2d 707 (2003).

In making his arguments in this appeal, defendant draws an analogy between his situation and that of a defendant who entered an open guilty plea under former Rule 605(b) (188 Ill.2d R. 605(b)). Some background is in order. Prior to its amendment on November 1, 2000, Supreme Court Rule 604(d) (188 Ill.2d R. 604(d)) provided that "[n]o appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to reconsider the sentence, if only the sentence is being challenged, or, if the plea is being challenged, a motion to withdraw the plea of guilty and vacate the judgment." To ensure that guilty plea defendants were informed of these requirements, the trial court was required to give the admonishments contained in Rule 605(b) regarding the right to appeal. Those admonishments told defendants, in relevant part, that prior to taking an appeal, they must file within 30 days of sentencing a written motion to reconsider the sentence or to have the judgment vacated and for leave to withdraw the guilty plea. However, in People v. Evans, 174 Ill.2d 320, 332, 220 Ill.Dec. 332, 673 N.E.2d 244 (1996), this court held that the motion-to-reconsider-sentence clause of Rule 605(b) applied only to open guilty pleas. A defendant who had negotiated a plea as to charging and sentencing with the State was required to file a motion to withdraw his guilty plea. Subsequent cases refined this requirement. See, e.g., People v. Lumzy, 191 Ill.2d 182, 187, 246 Ill.Dec. 340, 730 N.E.2d 20 (2000)

(where no agreement as to sentencing is made, defendant not required to seek to withdraw guilty plea as a prerequisite to challenging the sentence); People v. Clark, 183 Ill.2d 261, 268, 233 Ill.Dec. 331, 700 N.E.2d 1039 (1998) (defendant who seeks to challenge only the consecutive aspect of his sentence must file motion to withdraw guilty plea where the plea was entered pursuant to a negotiated plea); Linder, 186 Ill.2d at 74, 237 Ill.Dec. 129, 708 N.E.2d 1169 (where defendant pleads guilty in exchange for dismissal of certain charges and recommended sentencing cap, he must move to withdraw his guilty plea). We also held in Linder that where a defendant fails to comply with the motion requirements of Rule 604(d), the appellate court must dismiss the appeal. Linder, 186 Ill.2d at 74, 237 Ill.Dec. 129, 708 N.E.2d 1169. As of November 1, 2000, Rule 605 (b) was amended to provide different forms of advice for defendants who had negotiated some aspect of their sentence and for those 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 as to their sentences received incorrect advice. They were told that they could either move to withdraw their guilty pleas or move to reconsider their sentences. Those defendants had their cases remanded for proper admonishments because they had been affirmatively misled by the trial court's advice, even though the admonishments were in accordance with the version of the rule then in effect. See People v. Diaz, 192 Ill.2d 211, 227, 249 Ill.Dec. 1, 735 N.E.2d 605 (2000); People v. Clark, 183 Ill.2d 261, 270, 233 Ill.Dec. 331, 700 N.E.2d 1039 (1998); People v. Leahy, 322 Ill.App.3d 974, 975-76, 256 Ill.Dec. 244, 751 N.E.2d 634 (2001) (collecting cases). Defendant believes he should receive the same benefit. We now address his arguments.

A conflict exists among some districts of our appellate court regarding the question of whether a defendant who was properly admonished under preamended Rule 605(a) is entitled on some basis to a remand for admonishment under the amended rule. Like the appellate court in the instant case, the court in People v. Little, 318 Ill.App.3d 75, 252 Ill.Dec. 726, 743 N.E.2d 594 (2001), declined to remand for admonishment under amended Rule 605(a), rejecting the defendant's due process claim. The court noted that the language of the preamended rule was plain and unambiguous and that, in contrast to guilty plea defendants admonished under preamended Rule 605(b), the defendant was not misled as to what type of motion was required. The court also noted that plain error review was always available to Rule 605(a) defendants who failed to preserve sentencing issues for review. Little, 318 Ill.App.3d at 80, 252 Ill.Dec. 726, 743 N.E.2d 594.

A contrary result was reached by the court in People v. Mazar, 333 Ill.App.3d 244, 266 Ill.Dec. 573, 775 N.E.2d 135 (2002). There, the defendant was admonished under preamended Rule 605(a). On appeal, although he did not claim any error in his sentence, the defendant argued that the failure to admonish him of the need to file a postsentencing motion deprived him of due process, analogizing the situation to the failure to properly admonish guilty plea defendants under preamended Rule 605(b). The Mazar court rejected this argument, concluding that no duty existed to admonish defendants under Rule 605(a) of the need to file a postsentencing motion and that the rule did not misinform defendants of their appeal rights, as it was merely silent on that issue. Mazar, 333 Ill.App.3d at 257, 266 Ill.Dec. 573, 775 N.E.2d 135. Nonetheless, the court did remand the defendant's case for admonishment under amended Rule 605(a). The court noted the amendment of the rule and cited cases decided under preamended Rule 605(b) holding that remand for proper admonishments was required under principles of fundamental fairness (e.g., Leahy, 322 Ill.App.3d 974,

256 Ill.Dec. 244,

751 N.E.2d 634). The Mazar court held that a remand for admonishments under now amended Rule 605(a) was supported by the same ...