People v. Gramlich
| Decision Date | 13 March 1979 |
| Docket Number | No. 78-192,78-192 |
| Citation | 25 Ill.Dec. 507,386 N.E.2d 1171,69 Ill.App.3d 23 |
| Parties | , 25 Ill.Dec. 507 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James J. GRAMLICH, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Michael J. Rosborough, Deputy State Appellate Defender, John H. Reid, Asst. State Appellate Defender, Fifth Judicial District, Mount Vernon, Michael J. Reagan, Research Asst., St. Louis University School of Law, for defendant-appellant.
Charles V. Romani, Jr., State's Atty., Greenville, Raymond F. Buckley, Jr., Deputy Director, Stephen J. Maassen, Staff Atty., State's Attys. Appellate Service Commission, Mount Vernon, for plaintiff-appellee.
The defendant, James J. Gramlich, appeals from convictions on two burglary charges and one attempt (burglary) charge entered upon negotiated pleas of guilty before the circuit court of Bond County. Defendant was sentenced to the Department of Corrections in accord with the negotiations for not less than two years nor more than six years on each conviction. Said sentences were to be served concurrently.
The State initially contends that the appeal should be dismissed, because the defendant failed to file a motion to vacate his plea of guilty pursuant to Supreme Court Rule 604(d) (Ill.Rev.Stat.1977, ch. 110A, par. 604(d)). After imposing sentence the court stated to defendant:
All right. Sentence will be carried out. Finally Mr. Gramlich, you have a right to file a Motion to Vacate the pleas and judgments of guilty heretofore entered. To protect that right, you must file that Motion within 30 days. Failure to file it would waive any claim of error in these proceedings. Should it be filed and allowed, the cases would start over from their inception point and set down for trial. In the event that you are an indigent person, you have a right to request the Court to appoint you counsel and provide you copies of this transcript without any charge. Do you understand your Motion to Vacate Plea and Judgment of Guilty?
Supreme Court Rule 605(b) requires that:
On Judgment and Sentence Entered on a Plea of Guilty. In all cases in which a judgment is entered upon a plea of guilty, at the time of imposing sentence, the trial court shall advise the defendant substantially as follows:
(1) That he has a right to appeal;
(2) That prior to taking an appeal he must file in the trial court, within 30 days of the date on which sentence is imposed, a written motion asking to have the judgment vacated and for leaving to withdraw his plea of guilty, setting forth his grounds for the motion;
(3) That if the motion is allowed, the plea of guilty, sentence and judgment will be vacated and a trial date set on the charges to which the plea of guilty was made;
(4) That upon the request of the State any charges that may have been dismissed as a part of a plea agreement will be reinstated and will also be set for trial;
(5) That if he is indigent, a copy of the transcript of proceedings at the time of his plea of guilty and sentence will be provided without cost to him and counsel will be appointed to assist him with the preparation of the motions; and
(6) That in any appeal taken from the judgment on the plea of guilty any issue or claim of error not raised in the motion to vacate the judgment and to withdraw his plea of guilty shall be deemed waived.
In the case at bar, the trial court did not substantially comply with Supreme Court Rule 605(b). Three sections in Supreme Court Rule 605(b) refer to either defendant's right to appeal or actions which must be taken by the defendant in order to perfect that right. Nowhere in the sentencing hearing did the court refer to defendant's right to appeal. Therefore, we will consider the issues raised by defendant on appeal. (See People v. Ryant (5th Dist.1976), 41 Ill.App.3d 273, 354 N.E.2d 395).
Defendant initially contends that he was never properly "advised of his right to counsel if he were indigent; and was never advised that a lawyer would be appointed free of charge;" and that the statements of the trial court could reasonably be interpreted to mean that the defendant was entitled to appointed counsel only if he pleaded not guilty. Defendant made his initial appearance on the attempt murder charge and one of the burglary charges on January 31, 1978. The case was continued until February 17, 1978 and then continued to February 23, 1978. On February 23, 1978, the second burglary charge was filed. At that time defendant and the State entered into the negotiated pleas.
Defendant's major complaint is that Supreme Court Rule 401 (Ill.Rev.Stat.1977, ch. 110A, par. 401) requires the court to admonish defendant that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court.
At his initial appearance before the court on January 31, 1978, the defendant was advised by the court:
Also I told Mr. Simpson, you are entitled to employ counsel. A person who cannot afford counsel has a right to request the court to appoint new counsel. If I agree, I would so appoint.
At his second appearance before the court on February 17, 1978 the defendant was addressed as follows by the court:
Now at that date and time reference to defendant's initial appearance you also informed the court that apparently you were not making any request for appointment of counsel and were informed of the date and time. Am I correct then, Mr. Gramlich, as you now appear here that you are representing yourself and are still not making any request for appointment of counsel? Am I correct?
DEFENDANT GRAMLICH: Yes, sir.
At his third and final appearance before the court the defendant entered his negotiated plea of guilty the following was part of the admonishments given defendant by the court:
If you cannot afford counsel, you would have a right to request the court to appoint you counsel. If I agree, I would so appoint.
We have examined the entire record on appeal and are of the opinion that the court substantially complied with Supreme Court Rules 401 and 402 (). People v. Buckner (5th Dist.1976), 36 Ill.App.3d 116, 343 N.E.2d 231.
Defendant's second contention is that the trial court failed to advise the defendant of his right to counsel at the sentencing hearing. However, as pointed out previously in this opinion, the pleas were negotiated and the court complied with Supreme Court Rule 402(d). (Ill.Rev.Stat.1977, ch. 110A, par. 402(d)). In these types of proceedings, in which the court conditionally concurs in the negotiations, there is, for all practical purposes, but one hearing. When a negotiated plea is employed, and the trial court concurs in the disposition by the parties, there is no necessity for a formal sentencing hearing. People v. Barto (19...
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People v. Miller
...has failed to admonish the defendant in accordance with Supreme Court Rule 605(b). People v. Newbolds; People v. Gramlich (1979), 69 Ill.App.3d 23, 25 Ill.Dec. 507, 386 N.E.2d 1171; People v. Martin (1978), 58 Ill.App.3d 915, 16 Ill.Dec. 381, 374 N.E.2d Rule 605(b) provides, in pertinent pa......
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...430 N.E.2d 367 ... 102 Ill.App.3d 791, 58 Ill.Dec. 425 ... In the Interest of Frank WALKER, a minor ... PEOPLE of the State of Illinois, Petitioner-Appellee, ... Frank WALKER, a minor, Respondent-Appellant ... No. 80-1210 ... Appellate Court of Illinois, ... Ryant (1976), 41 Ill.App.3d 273, 354 N.E.2d 395; People v. Saldana (1977), 53 Ill.App.3d 636, 11 Ill.Dec. 447, 368 N.E.2d 1055; People v. Gramlich (1979), 69 Ill.App.3d 23, 25 Ill.Dec. 507, 386 N.E.2d 1171); and (2) where the failure of counsel to file a Rule 604(d) motion to perfect the appeal ... ...
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People v. Green
...failed to properly admonish the defendant pursuant to Supreme Court Rule 605(b) (87 Ill.2d R. 605(b); People v. Gramlich (1979), 69 Ill.App.3d 23, 25 Ill.Dec. 507, 386 N.E.2d 1171) and where the failure to file such a motion constituted ineffective assistance of counsel (People v. Morguez (......
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People v. Pulley
... ... (People v. Schmidt, 59 Ill.App.3d 762, 16 Ill.Dec. 922, 375 N.E.2d 1029).) One exception to the foregoing rule is where the trial court fails to give Rule 605(b) admonitions to the defendant. (People v. Ryant, 41 Ill.App.3d 273, 354 N.E.2d 395 (5th Dist. 1976); People v. Gramlich, 69 Ill.App.3d 23, 25 Ill.Dec. 507, 386 N.E.2d 1171 (5th Dist. 1979); People v. Theobald, 43 Ill.App.3d 897, 1 Ill.Dec. 925, 356 N.E.2d 1258 (3d Dist. 1976).) Another exception to the rule is where the failure of counsel to file a Rule 604(d) motion to perfect the appeal constitutes ineffective ... ...