People v. Dunn

• Decision Date: 27 June 2003
• Docket Number: No. 1-01-4253.,1-01-4253.
• Citation: 795 N.E.2d 799,342 Ill. App.3d 872,277 Ill.Dec. 131
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Darzell DUNN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

795 N.E.2d 799

342 Ill. App.3d 872

277 Ill.Dec. 131

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Darzell DUNN, Defendant-Appellant.

No. 1-01-4253.

Appellate Court of Illinois, First District, Sixth Division.

June 27, 2003.

As Modified Upon Denial of Rehearing August 8, 2003.

Michael J. Pelletier, Office of the State Appellate Defender, Chicago (Jeffery A. Waldhoff, of counsel), for Appellant.

Richard A. Devine, Cook County State's Attorney, Chicago (Renee Goldfarb, Margaret J. Campos and Patrick J. Keane, of counsel), for Appellee.

MODIFIED OPINION UPON DENIAL OF REHEARING

Justice FROSSARD delivered the modified opinion of the court:

On April 2, 2001, defendant Darzell Dunn pled guilty to one count of residential burglary and was sentenced to 20 years' imprisonment based on his criminal history, which included 10 prior convictions. On appeal, defendant contends that he did not enter a negotiated guilty plea and, therefore, should have been admonished under Supreme Court Rule 605(b), which governs non-negotiated guilty pleas (188 Ill.2d R. 605(b)). Defendant seeks remand to the circuit court for compliance with the requirements of Supreme Court Rule 605(b).

BACKGROUND

A conference pursuant to Supreme Court Rule 402 was held on January 25, 2001. Before the conference took place, the trial court stated the following to defendant:

"THE COURT: Mr. Dunn, your lawyer asked me to participate in a pre-trial conference to talk about a possible plea of guilty by you with regard to these charges. When I hold that conference, I am going to talk to your lawyer and the State's Attorney. They will tell me what they expect the evidence would show if your case was to go to trial. They will also tell me some things that may not be admissible at trial, including any criminal history that you might have. After the conference, if there isn't an agreement on a sentence or if you don't want to accept what I say I will do in return for a plea of guilty, the fact that we had the conference won't be a sufficient reason for you to get another judge. Do you understand what I have said?

THE DEFENDANT: Yes, sir.

THE COURT: Do you want me to have that conference?

THE DEFENDANT: Yes."

Following the conference, defendant indicated that he wished to set the case for a jury trial, and the trial court assigned April 2, 2001, as the trial date.

On April 2, 2001, defendant indicated that he wished to plead guilty. At that time, the following discussion occurred:

"DEFENSE COUNSEL: This is Darzell Dunn. I have explained the results of the 402 conference on a prior court date, which he wishes to accept the offer and plead guilty to residential burglary.

THE COURT: Is that what you want to do?

THE DEFENDANT: Yeah.

THE COURT: You are charged with one count of residential burglary. That is a class 1 felony. The potential penalty is anywhere between 4 and 15 years in the Illinois Department of Corrections, plus, two years mandatory supervised release. Based upon what I was told in the pretrial conference, you understand you're subject to an extended term, which would be anywhere between 15 and 30 years in the Illinois Department of Corrections, plus, two years mandatory supervised release.

* * *

THE COURT: I did say on a prior occasion if you plead guilty, I would sentence you to 20 years in the Illinois Department of Corrections, which is an extended term sentence. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: Is that acceptable to you now?

THE DEFENDANT: Yes sir.

THE COURT: What's your plea to this charge of residential burglary, guilty or not guilty?

THE DEFENDANT: Guilty."

The State then recited the stipulated factual basis. Defendant was caught taking property from the victim's home. The victim, along with a neighbor, detained defendant until the police arrived. The trial court accepted defendant's jury waiver and guilty plea, finding that the plea was voluntary and that there was a factual basis for the plea. The trial court then found defendant guilty and sentenced him to 20 years' imprisonment. The trial court then admonished defendant:

"Sir, you have a right to appeal. Prior to doing that, you have to file a motion to withdraw your plea of guilty within 30 days in writing setting forth all the reasons why you want me to allow you to withdraw your plea of guilty. Any reasons not set forth in your motion will be waived for purposes of appeal. If you couldn't afford an attorney or a copy of the transcript, those will be provided for you free of charge. If I allow you to withdraw your plea of guilty, all charges will be reinstated."

Defendant filed a late notice of appeal which incorporated the motion to withdraw his guilty plea and to vacate judgment. This late notice of appeal was denied on June 22, 2001. A revised late notice of appeal was later allowed by this court.

ANALYSIS

Supreme Court Rule 604(d) provides the requirements a defendant must satisfy when appealing from a judgment entered on a plea of guilty. 188 Ill.2d R. 604(d). Rule 604(d) states in relevant part:

"No 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. * * * The motion shall be in writing and shall state the grounds therefor. * * * Upon appeal any issue not raised by the defendant in the motion to reconsider the sentence or withdraw the plea of guilty and vacate the judgment shall be deemed waived." 188 Ill.2d R. 604(d).

Rule 604(d) provides that a defendant who entered a guilty plea, whether open or negotiated, must file a written postplea motion with the trial court when appealing from a judgment entered on a plea of guilty. 188 Ill.2d R. 604(d). Absent defendant's compliance with the required written postplea motion, this court cannot consider defendant's appeal. People v. Wilk, 124 Ill.2d 93, 105, 124 Ill.Dec. 398,529 N.E.2d 218 (1988). In Wilk, our supreme court held that the requirement that defendant file a written post-sentencing motion is not a suggestion but, rather, mandatory. Wilk, 124 Ill.2d at 103,124 Ill.Dec. 398,529 N.E.2d 218. A written postsentencing motion is a "condition precedent" to appeal. Wilk, 124 Ill.2d at 107,124 Ill.Dec. 398,529 N.E.2d 218.

We note that a number of appellate court opinions have interpreted the "condition precedent" language as finding the filing of a Rule 604(d) motion to be a jurisdictional requirement. See People v. Clark, 276 Ill.App.3d 1002, 1005, 213 Ill.Dec. 505, 659 N.E.2d 421 (1995); People v. Castillo, 243 Ill.App.3d 818, 820-21, 183 Ill.Dec. 881, 612 N.E.2d 533 (1993). However, other appellate court opinions reject finding the filing of a Rule 604(d) motion to be a jurisdictional requirement but, rather, indicate that failure to file a Rule 604(d) motion can result in the waiver of a defendant's right to appeal. See e.g., People v. Cochrane, 257 Ill.App.3d 1047, 1050, 196 Ill.Dec. 551, 630 N.E.2d 486 (1994)

; People v. Young, 250 Ill.App.3d 55, 63, 189 Ill.Dec. 150, 619 N.E.2d 851 (1993).

In People v. McKay, 282 Ill.App.3d 108, 218 Ill.Dec. 96, 668 N.E.2d 580 (1996), the court held that failure to file a Rule 604(d) motion results in waiver of a defendant's right to appeal. In its analysis, the McKay court noted as follows:

"In Wilk, our supreme court—concerned Rule 604(d) was widely ignored by both courts and attorneys—determined defendants who fail to file a Rule 604(d) motion may not pursue a direct appeal; instead, the Post-Conviction Hearing Act [citation] is the appropriate avenue of relief for such defendants. [Citation.] From this proposition it does not inexorably follow that an appellate court lacks jurisdiction over an appeal taken from a guilty plea in the absence of a Rule 604(d) motion. Rather, the Wilk line of cases and Rule 604(d) represent an instruction from the supreme court requiring the appellate courts to find defendants waive their right to appeal by failing to file a Rule 604(d) motion. Wilk and its progeny, therefore, withdraw from an appellate court not jurisdiction, but rather the decision whether waiver should bar the appeal of a defendant who has not filed a Rule 604(d) motion. [Citation.]" McKay, 282 Ill.App.3d at 111, 218 Ill.Dec. 96, 668 N.E.2d 580.

The Illinois Supreme Court recently resolved this split of authority in In re William M., No.93760, 206 Ill.2d 595, 276 Ill.Dec. 916, 795 N.E.2d 269, 2003 WL 21404572 (June 19, 2003), finding that the court in McKay was correct. The supreme court indicated that the failure to file a Rule 604(d) motion does not deprive the court of jurisdiction, but can result in the waiver of a defendant's right to appeal. William M., slip op. at 4, 206 Ill.2d at 600-601, 276 Ill.Dec. 916, 795 N.E.2d 269, 2003 WL 21404572.

A defendant's failure to satisfy the written postplea motion requirements of Rule 604(d) can result in the loss of the right to direct appeal. In the context of negotiated pleas of guilty, we note that Rule 605(c) is a necessary corollary to Rule 604(d) because Rule 605(c) mandates the trial judge to admonish defendant regarding the requirements of Rule 604(d). Here, defendant failed to file a timely Rule 604(d) motion; however, exceptions to the written motion requirements of Rule 604(d) have been recognized. People v. Foster, 171 Ill.2d 469, 473, 216 Ill.Dec. 565, 665 N.E.2d 823 (1996); William M., slip op. at 6, 206 Ill.2d at 602-603, 276 Ill.Dec. 916, 795 N.E.2d 269, 2003 WL 21404572. The exception to noncompliance with the postplea motion requirements of Rule 604(d) occurs where the trial court failed to properly admonish defendant. Foster, 171 Ill.2d at 473,216 Ill.Dec. 565,665 N.E.2d 823. In Foster, our supreme court recognized that strict compliance with Rule 604(d) is required and a...