People v. Brownell

• Decision Date: 14 July 1980
• Docket Number: No. 79-223,79-223
• Citation: 86 Ill.App.3d 697,408 N.E.2d 304,41 Ill.Dec. 882
• Parties: , 41 Ill.Dec. 882 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Curtis J. BROWNELL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 304

408 N.E.2d 304

86 Ill.App.3d 697, 41 Ill.Dec. 882

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Curtis J. BROWNELL, Defendant-Appellant.

No. 79-223.

Appellate Court of Illinois, Second District.

July 14, 1980.

Rehearing Denied Aug. 26, 1980.

Mary Robinson, Deputy State Appellate Defender, Mark Schuster, Asst. State's Appellate Defender, Elgin, for defendant-appellant.

Daniel D. Doyle, State's Atty., Rockford, Phyllis J. Perko, Martin P. Moltz, State's Attys. Appellate Service Commission, Elgin, for plaintiff-appellee.

VAN DEUSEN, Justice:

Defendant, Curtis J. Brownell, appeals from a denial of his motion, made pursuant to Supreme Court Rule 604(d) (Ill.Rev.Stat.1977 ch. 110A, par. 604(d)), to withdraw his guilty pleas and vacate the judgments against him.

The defendant's motion to withdraw his guilty pleas was not timely made. Generally, the failure of defendant to file a timely Rule 604(d) motion requires that the appeal be dismissed and neither acquiescence by the State to the tardy motion nor a hearing on the motion despite its tardiness will save an appeal from otherwise being dismissed. Cf., People v. Frey (1977), 67 Ill.2d 77, 7 Ill.Dec. 59, 364 N.E.2d 46.

Under the facts and circumstances of this case, and in light of the presence of the errors which we discuss later in this opinion, we deem the failure of defendant's attorney to file the motion in apt time to constitute ineffective assistance of counsel. We therefore may consider the merits of defendant's appeal. People v. LaPointe (2d District, supplemental opinion upon denial of rehearing filed June 26, 1980), 85 Ill.App.3d 215, ---, 41 Ill.Dec. 4, 407 N.E.2d 196; People v. Meacham (3d Dist. 1977), 53 Ill.App.3d 762, 767, 10 Ill.Dec. 805, 368 N.E.2d 400.

Defendant was charged on February 10, 1978, in a five count information, with the offenses of rape, aggravated kidnapping, attempt murder, armed robbery and armed violence.

On August 21, 1978, defendant entered into a negotiated plea agreement pursuant to Supreme Court Rule 402(b). (Ill.Rev.Stat.1977, ch. 110A, par. 402(b).) Under the agreement, defendant was to plead guilty to the offenses of rape, aggravated kidnapping and attempt murder in exchange for the dismissal, by the State, of the other two charges. The terms of the agreement also provided that defendant was to receive concurrent sentences for the rape and aggravated kidnapping charges but the determination of whether the sentence to be imposed for the attempt murder was to run concurrently or consecutively to the concurrent sentences to be imposed for rape and aggravated kidnapping was to be left to the discretion of the court. This agreement was stated in open court. Next, following the requirements of Supreme Court Rule 402 (Ill.Rev.Stat.1977, ch. 110A, par. 402), the trial judge, very carefully and in great detail, advised the defendant of the charges against him, his right to elect sentencing under the new or old sentencing law, the minimum and maximum sentences prescribed by both laws and all the other matters required by Rule 402. He further admonished defendant that, under the new Act, where certain aggravating factors are found to be present, an extended sentence could be imposed for rape and aggravated kidnapping. The court then stated, "I find no reference in the Act to the extended term provisions applying to the crime of attempt murder." After defendant indicated that no other promises had been made to him, that he understood the judge's admonitions and the consequences of his guilty pleas and was acting voluntarily and freely, the court accepted the pleas and entered judgment of conviction on all three counts.

On October 18 and 19, 1978, sentencing hearings were held and defendant elected to be sentenced under the new Act. (Ill.Rev.Stat.1978 Supp., ch. 38, par. 1003-1-1 et seq.) Among other things evidence at the sentencing hearing had disclosed that the defendant had also been convicted of murder, aggravated kidnapping and rape, on October 13, 1978, in the circuit court of Boone County, Illinois, case no. 78 CF 37. For those offenses, he was given the penalty of death and two concurrent 30-90 year terms of imprisonment. At the conclusion of the sentencing hearing in the present case, the court, pursuant to section 5-8-2 of the Unified Code of Corrections (Ill.Rev.Stat.1978 Supp., ch. 38, par. 1005-8-2), imposed extended terms for all three offenses. Two concurrent terms of 50 years were imposed for rape and aggravated kidnapping (the sentence for aggravated kidnapping was later reduced to 25 years) and a sentence of 50 years was imposed for attempt murder to run consecutively to the two concurrent sentences. In addition, the court ordered that all three of the sentences would be consecutive to the sentences imposed by the circuit court of Boone County in case no. 78 CF 37.

The record of the guilty plea proceeding discloses that the trial court did not advise the defendant that an extended sentence could be imposed, under section 5-8-2, on the attempt murder charge. (Ill.Rev.Stat.1978 Supp., ch. 38, par. 1005-8-2.) The most reasonable inference...