People v. Bryant

• Decision Date: 12 December 2006
• Docket Number: No. 1-05-0458.,1-05-0458.
• Citation: People v. Bryant, 860 N.E.2d 511, 307 Ill.Dec. 857, 369 Ill.App.3d 54 (Ill. App. 2006)
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kavell BRYANT, Defendant-Appellant.
• Court: Appellate Court of Illinois

860 N.E.2d 511

307 Ill.Dec. 857

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Kavell BRYANT, Defendant-Appellant.

No. 1-05-0458.

Appellate Court of Illinois, First District, Second Division.

December 12, 2006.

COPYRIGHT MATERIAL OMITTED

Michael J. Pelletier, Deputy Defender, and Sean Collins-Stapleton, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, for Appellant.

Richard A. Devine, State's Attorney of Cook County, Chicago (James Fitzgerald, Matthew Connors, and Jeffrey Potter, of counsel), for Appellee.

Presiding Justice WOLFSONdelivered the opinion of the court:

In August of 2003we sent this case back to the trial court with a simple mandate: provide the defendant with proper Supreme Court Rule 605(b)(188 Ill.2d R. 605(b)) admonishments and give him the opportunity to file a motion to withdraw his guilty plea.People v. Bryant,No. 1-01-3013, 341 Ill.App.3d 1106, 304 Ill.Dec. 660, 853 N.E.2d 449(2003)(unpublished order under Supreme Court Rule 23).What followed in the trial court was a series of rulings that create an issue of first impression in this State.

The main issue is whether the trial court erred in reconsidering and vacating an order granting the defendant's oral motion to withdraw his guilty plea.We hold it did not.

BACKGROUND

DefendantKavell Bryant pled guilty to first degree murder and was sentenced to 20 years in prison.Defendant failed to file a written motion to withdraw his guilty plea as required by Supreme Court Rule 604(d).188 Ill.2d R. 604(d).He did not file a direct appeal.Defendant filed a pro se post-conviction petition, which the trial court dismissed after a second-stage hearing.Defendant appealed.We remanded the case to the trial court with directions to admonish defendant in accordance with Rule 605(b), and to allow him to file a motion to withdraw his guilty plea if he so desired.

On remand, the trial court started to admonish defendant pursuant to Rule 605(b) when it suddenly stopped and asked defendant whether he wished to "withdraw his guilty plea."After defendant's counsel responded "he does,"the trial court said: "All right, I'm not going to play this nonsense.Motion to withdraw guilty plea is sustained.Okay.We are back on the trial call."When the State asked whether there would be a hearing on defendant's motion to withdraw his guilty plea, the court said:

"Well, the whole thing is, here's my whole point, when I am part of the agreement, there was an agreement upon his plea, if the defendant doesn't want it, if you can turn back pots and pans, my philosophy is, he can vacate the plea agreement.Okay?"

The half-sheet contains a notation indicating the trial court sustained defendant's motion to withdraw his plea on December 1, 2003.The State did not object to the trial court's consideration of an oral motion to withdraw the guilty plea.

On December 22, 2003, the State filed a "Motion to Reconsider Granting of Defendant's Motion to Withodraw [sic] Guilty Plea," requesting the trial court reconsider its decision and conduct a hearing into the merits of the defendant's motion to withdraw.

Defense counsel filed a written motion to withdraw defendant's guilty plea on February 4, 2004.On May 17, 2004, the trial court granted the State's motion to reconsider, holding: "All right, the motion to vacate the order for new trial is sustained, all right."

The case then was passed for a discussion between the court and the parties.When the case was recalled, the trial court admonished defendant pursuant to portions of Supreme Court Rule 402. 177 Ill.2d R. 402.The trial court apparently believed this court had ordered him to give more complete Rule 402 admonishments.We did not.During the Rule 402 admonishments, the trial court asked defendant whether any promises or agreements had been made to him to make him plead guilty.Defendant said his attorney promised him he could get "day-for-day like two-for-one" for the time he spent in county jail, and "could get a time cut within two years" if he pled guilty.Defendant said his attorney told him "several other things like he induced me to take it."

After determining the defendant understood he was pleading guilty voluntarily and knowingly, the trial court accepted his "guilty plea."No sentence was imposed or discussed.Defendant was then admonished pursuant to Rule 605(b), which included an admonishment that he could file a written motion to withdraw his plea.

Following the hearing, the State raised the issue of defendant's bond, which had previously been set at $150,000.The State argued defendant should be held in custody until the ruling on his motion to vacate the guilty plea because he was once again a convicted felon.The court replied:

"Well, actually right now as its stands there is, will be, I will allow [defendant] to file an oral motion instanter to vacate the plea of guilty so you are not convicted of anything until thirty days from now.* * * So, State, there has been not a substantial change in his position other than the appellate court said that he had been not properly admonished on his guilty plea and throughout the pendency of this you have never moved to increase the bond.Now that he has made bond it seems like an afterthought."

The trial court sustained defendant's oral motion to allow his bond to stand.No issue is raised in this appeal regarding the court's post-hearing comments about an oral motion to vacate the guilty plea "until 30 days from now."Whatever order the trial court had in mind was not reduced to writing and never was referred to again.It remains a mystery.Since it is not raised as an issue, we will move on.

On June 8, 2004, defense counsel filed a second written motion to withdraw defendant's guilty plea, contending his plea was not voluntary because of his prior defense counsel's misrepresentations in the original action.Following a hearing, the trial court denied the motion, finding that:

"[Defendant] did enter his plea knowingly and voluntarily.The evidence showed that he was not incorrectly informed by his attorney concerning reductions of sentences, * * * I find that the evidence has shown that there has been no substantial violations of his Constitutional rights, which would indicate in any way that [defendant's] plea was not voluntary and was not knowingly made.Therefore, the motion to withdraw the plea is denied."

Defendant appealed.

DECISION

I.Motion to Withdraw the Guilty Plea

Defendant contends the trial court improperly reconsidered its decision to vacate the guilty plea because his "presumption of innocence and constitutional rights" reattached after the trial court vacated his plea.Defendant contends the trial court had no authority to insert him back into his guilty plea.SeeSchak v. Blom,334 Ill.App.3d 129, 134, 267 Ill.Dec. 832, 777 N.E.2d 635(2002)(a judgment or order is void where it is entered by a court which lacks the "inherent power to enter the particular judgment or order.")Defendant does not challenge the merits of the trial court's decision to deny his motion to withdraw the guilty plea.That is, he does not claim the 1998Rule 402 admonishments were fatally defective.

Initially, we note the parties disagree regarding the correct standard of review in this appeal.Defendant contends his claim presents a pure question of law, and, therefore, should be reviewed de novo.SeePeople v. Johnson,206 Ill.2d 348, 359, 276 Ill.Dec. 399, 794 N.E.2d 294(2002).The State counters it is within the sound discretion of the trial court to determine whether a guilty plea may be withdrawn, and the court's decision is reviewed only for an abuse of discretion.SeePeople v. Stevens,324 Ill.App.3d 1084, 1090, 259 Ill.Dec. 146, 757 N.E.2d 1281(2001).Because the issue on appeal is whether the trial court had the power to reconsider its decision to grant defendant's motion to withdraw the plea, we find the proper standard of review is de novo.

Leave to withdraw a guilty plea is "not granted as a matter of right, but as required to correct a manifest injustice under the facts involved."People v. Pullen,192 Ill.2d 36, 39, 248 Ill.Dec. 237, 733 N.E.2d 1235(2000).A trial court should allow a defendant to withdraw his guilty plea where the plea was based on the misapprehension of facts or law or because of misrepresentations by counsel, where there is doubt of the defendant's guilt, or where ends of justice would better be served by submitting the case to a trial.Pullen,192 Ill.2d at 40, 248 Ill.Dec. 237, 733 N.E.2d 1235;Stevens,324 Ill.App.3d at 1090, 259 Ill.Dec. 146, 757 N.E.2d 1281.

The State counters that the trial court did not actually vacate defendant's guilty plea during the hearing on December 1, 2003.The State contends the trial could not have procedurally withdrawn the guilty plea until defendant filed a written motion to withdraw his plea, as required by Supreme Court Rule 604(d).

As defendant notes, the State did not object to an oral motion before or after the trial court vacated defendant's guilty plea and placed the case back on the trial call.Instead, the State sought leave to file a motion to reconsider the decision based on the trial court's failure to conduct a hearing on the motion.

Issues not raised in the trial court are generally considered forfeited on appeal.People v. O'Neal,104 Ill.2d 399, 407, 84 Ill.Dec. 481, 472 N.E.2d 441(1984)."The principle of waiver applies to the State as well as the defendant in a criminal case."O'Neal,104 Ill.2d at 407, 84 Ill.Dec. 481, 472 N.E.2d 441.See alsoPeople v. Enoch,122 Ill.2d 176, 188, 119 Ill.Dec. 265, 522 N.E.2d 1124(1988)("It has been held that the requirement of a written motion can be waived if a defendant makes an oral motion for a new trial and the State does not object.")We find the State forfeited its contention on appeal.SeeEnoch,122 Ill.2d at 188, 119 Ill.Dec. 265, 522 N.E.2d 1124.

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