People v. Collins

• Decision Date: 18 March 2002
• Docket Number: No. 2-00-1166.,2-00-1166.
• Citation: 262 Ill.Dec. 703,328 Ill. App.3d 366,766 N.E.2d 323
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Eric D. COLLINS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

766 N.E.2d 323

328 Ill. App.3d 366

262 Ill.Dec. 703

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Eric D. COLLINS, Defendant-Appellant.

No. 2-00-1166.

Appellate Court of Illinois, Second District.

March 18, 2002.

G. Joseph Weller, Deputy Defender (Court-appointed), Paul Alexander Rogers (Court-appointed), Office of the State Appellate Defender, Elgin, for Eric D. Collins.

Michael J. Waller, Lake County State's Attorney, Waukegan, Martin P. Moltz, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, Robert E. Davison, DePaepe & Davison, Springfield, for the People.

Justice GROMETER delivered the opinion of the court:

Pursuant to a negotiated plea agreement, defendant, Eric D. Collins, pleaded guilty to one count of attempted unlawful possession of a controlled substance with intent to deliver (720 ILCS 5/8-4(a), 570/401(c)(2) (West 2000)). The trial court sentenced defendant to four years' probation, subject to various conditions. In addition, the court imposed a $100 streetvalue fine and a $500 statutory fine. On appeal, defendant argues (1) the cause should be remanded for compliance with Supreme Court Rule 604(d) (145 Ill.2d R. 604(d)) and (2) the fines assessed by the trial court must be vacated. Alternatively, defendant contends that he is entitled to a $5-per-day credit against the fines imposed as part of his sentence. For the reasons that follow, we conclude that defendant has waived his right to appeal but that he is entitled to a monetary credit against his fines.

I. BACKGROUND

In March 2000, defendant was charged by complaint with various drug offenses. Subsequently, a five-count indictment was handed down against defendant and two other individuals. Defendant was named only in counts II, IV, and V of the indictment. Count II of the indictment alleged that defendant committed the offense of unlawful possession with intent to deliver "more than 1 gram but less than 5 grams" of a substance containing cocaine while within 1,000 feet of a school in violation of section 407(b)(1) of the Illinois Controlled Substances Act (Act) (see 720 ILCS 570/407(b)(1) (West 2000)). Count IV of the indictment charged defendant with unlawful possession with intent to deliver "more than 1 gram but less than 5 grams" of a substance containing cocaine in violation of section 401(c)(2) of the Act (see 720 ILCS 570/401(c)(2) (West 2000)). Count V of the indictment alleged that defendant committed the offense of unlawful possession of less than 15 grams of a substance containing cocaine in violation of section 402(c) of the Act (720 ILCS 570/402(c) (West 2000)).

Thereafter, defendant entered into an agreement with the State. Under the terms of the agreement, the State would amend count IV of the indictment to charge defendant with attempted unlawful possession with intent to deliver "more than 1 gram but less than 5 grams" of a substance containing cocaine (see 720 ILCS 5/8-4(a), 570/401(c)(2) (West 2000)). In exchange for defendant's plea to count IV as amended, the State would recommend a sentencing cap of 4½ years' imprisonment with eligibility for probation and it would nol-pros the remaining two charges against defendant. At a hearing on May 8, 2000, the trial court admonished defendant pursuant to Supreme Court Rule 402 (177 Ill.2d R. 402). The parties then recited the factual basis for the plea, and defendant pleaded guilty to count IV as amended.

On June 16, 2000, the matter proceeded to sentencing. Before the trial court had the opportunity to impose sentence, defendant indicated that he wished to withdraw his guilty plea on the basis that trial counsel was ineffective. The court appointed conflict counsel and continued the matter.

On August 8, 2000, defendant filed a motion to withdraw his guilty plea. Defendant's motion alleged that in light of recent case law he had a defense worth presenting to the charges filed against him. Accompanying defendant's motion was a Rule 604(d) certificate from his attorney. See 145 Ill.2d R. 604(d). On August 15, 2000, defendant argued his motion before the court. Among other things, defendant set forth the factual basis for the defense asserted in his motion. The trial court commented that defendant's written motion did not contain the factual basis as set forth at the hearing. However, the court allowed defendant to orally amend his motion to conform with the argument presented at the hearing and granted him leave to file the amended motion in writing. Nevertheless, the trial court denied defendant's motion.

On August 30, 2000, the trial court sentenced defendant to 4 years' probation, subject to various conditions, including 30 months' periodic imprisonment. In addition, the court assessed a $100 street-value fine and a $500 statutory fine. The trial court then admonished defendant as follows:

"You do have the right to appeal. This is a negotiated plea to the extent that there is a cap that was agreed to in the case. Mr. Collins, if you seek to challenge any aspect of the plea or sentence as a precondition of filing any appeal you have to file with this Court within 30 days of today's date a written motion to have the judgment vacated and leave to withdraw the plea of guilty. You must set forth all grounds in that motion. You won't be allowed to at a later time argue any additional reasons if they are not set forth in the written motion.

If the motion is granted, the judgment would be vacated and the sentence set aside. You would be given your plea back and trial would be set on the charge you pled guilty to. Any charges dismissed as a result of these negotiations would be reinstated. If found guilty after trial you could be resentenced, and that would be up to the maximum told to you at the time of the arraignment.

A copy of the transcript of the proceedings at the time of your plea of guilty and sentencing would be provided to you, and an attorney would be appointed to represent you on the motion.

If you were unsuccessful in the motion [to withdraw the plea of guilty], in order to appeal you must file a written motion with the appeals clerk within 30 days following the denial of that motion."

At a hearing on September 27, 2000, defense counsel asked the court to have the clerk prepare a notice of appeal on defendant's behalf and to appoint the Appellate Defender to represent defendant on appeal. The court granted both requests, and a notice of appeal was filed the same day.

II. ANALYSIS

Defendant first urges us to remand this cause to the trial court for compliance with Rule 604(d) because the trial court granted defense counsel's request for a notice of appeal despite the lack of a postsentencing motion. We decline defendant's request for such relief.

At the time of defendant's plea and sentencing, Rule 604(d) provided in pertinent part:

"(d) Appeal by Defendant from a Judgment Entered Upon a Plea of Guilty. No appeal taken 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 his plea of guilty and vacate the judgment. The motion shall be in writing and shall state the grounds therefor." 145 Ill.2d R. 604(d).

Thus, a defendant must first move to withdraw his guilty plea and vacate the judgment before appealing from a judgment entered upon a plea of guilty. The primary responsibility for compliance with Rule 604(d) lies with defense counsel (People v. Oliver, 276 Ill.App.3d 929, 932, 213 Ill.Dec. 519, 659 N.E.2d 435 (1995)), and strict compliance with the rule is required (People v. Dickerson, 212 Ill.App.3d 168, 170-71, 156 Ill.Dec. 426, 570 N.E.2d 902 (1991)). A premature motion filed prior to sentencing does not satisfy Rule 604(d) for purposes of appeal. People v. Ramage, 229 Ill.App.3d 1027, 1031, 172 Ill.Dec. 159, 595 N.E.2d 222 (1992). In other words, the defendant must file the motion to withdraw his guilty plea and vacate the judgment within 30 days after sentence has been imposed. Ramage, 229 Ill.App.3d at 1031, 172 Ill.Dec. 159, 595 N.E.2d 222. Moreover, our supreme court has determined that Rule 604(d) is a condition precedent to an appeal from a defendant's plea of guilty. People v. Foster, 171 Ill.2d 469, 471, 216 Ill.Dec. 565, 665 N.E.2d 823 (1996); People v. Wilk, 124 Ill.2d 93, 105, 124 Ill.Dec. 398, 529 N.E.2d 218 (1988).

In People v. Janes, 158 Ill.2d 27, 33, 196 Ill.Dec. 625, 630 N.E.2d 790 (1994), the supreme court held that, with two exceptions, the failure to strictly comply with the provisions of Rule 604(d) requires a remand to the circuit court for the filing of a new motion to withdraw the guilty plea or reconsider the sentence and a new hearing on the motion. The first exception is where a defendant challenging his plea fails to file a motion to withdraw his guilty plea. See Foster, 171 Ill.2d at 471,216 Ill.Dec. 565,665 N.E.2d 823. The second exception is where a defendant, challenging only his sentence, fails to file a motion to reconsider the sentence. See Foster, 171 Ill.2d at 471,216 Ill.Dec. 565,665 N.E.2d 823. In instances where either exception applies, "the appellate court must dismiss the appeal, leaving the Post-Conviction Hearing Act as a defendant's only recourse." Foster, 171 Ill.2d at 471,216 Ill.Dec. 565,665 N.E.2d 823.

In People v. McKay, 282 Ill.App.3d 108, 218 Ill.Dec. 96, 668 N.E.2d 580 (1996), we interpreted Wilk and its progeny to stand for the proposition that a defendant's failure to file a Rule 604(d) motion does not divest the appellate court of jurisdiction to hear a defendant's appeal. McKay, 282 Ill.App.3d at 111, 218 Ill.Dec. 96, 668 N.E.2d 580. Instead, we found that the Wilk line of cases holds that a defendant waives his right to appeal by failing to file a Rule 604(d) motion. McKay, 282 Ill. App.3d at 111, 218 Ill.Dec. 96, ...