People v. Hayes

• Decision Date: 06 December 2002
• Docket Number: No. 1-00-3681.,1-00-3681.
• Citation: 782 N.E.2d 787,270 Ill.Dec. 228,336 Ill. App.3d 145
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Zachery HAYES, a/k/a Anthony Felton, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

782 N.E.2d 787

336 Ill. App.3d 145

270 Ill.Dec. 228

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Zachery HAYES, a/k/a Anthony Felton, Defendant-Appellant.

No. 1-00-3681.

Appellate Court of Illinois, First District, Sixth Division.

December 6, 2002.

Michael J. Pelletier of the Office of the State Appellate Defender, Chicago (Patricia Mysza, of counsel), for Appellant.

Richard A. Devine, Cook County State's Attorney, Chicago (Renee Goldfarb, Annette Collins, Allen Spellberg and Bette Plass, of counsel), for Appellee.

Justice FROSSARD delivered the opinion of the court:

Defendant Zachery Hayes entered a nonnegotiated plea of guilty to possession of a controlled substance with intent to deliver within 1,000 feet of a church (No. 99-CR-18569). The trial court sentenced defendant to serve a six-year prison term consecutively to a seven-year sentence imposed after defendant's conviction in a separate case for delivery of a controlled substance (No. 99-CR-26511). Defense counsel filed a motion to reconsider and modify the sentence in the instant case, arguing that the trial court relied on an unconstitutional statute to impose a consecutive sentence. The trial court denied the motion. Defendant, through counsel, filed a notice of appeal without filing a motion to withdraw defendant's guilty plea or a certificate in compliance with Supreme Court Rule 604(d) (188 Ill.2d R. 604(d)). Defendant appeals the denial of his motion to reconsider and challenges the trial court's acceptance of his guilty plea.

Specifically, defendant contends that defense counsel failed to comply with Supreme Court Rule 604(d) (188 Ill.2d R. 604(d)); and that the trial court failed to comply with Supreme Court Rule 605(b) (188 Ill.2d R. 605(b)); that defendant's plea was not knowing and voluntary because the trial court failed to comply with Supreme Court Rule 402 (177 Ill.2d R. 402). Our review of the legal questions regarding Supreme Court Rule compliance is de novo. People v. Hall, 198 Ill.2d 173, 177, 260 Ill.Dec. 198, 760 N.E.2d 971 (2001)

. Defendant also contends that his consecutive sentence was unconstitutional pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

I. SUPREME COURT RULE 604(d) CERTIFICATE

Defendant contends, the State concedes, and the record establishes that defendant's trial counsel failed to file a certificate indicating compliance with Rule 604(d), which requires counsel to certify that he consulted with defendant, examined the trial court file and report of proceedings, and made any necessary amendments to defendant's motion to reconsider. The appropriate remedy for the failure to strictly comply with the requirements of Rule 604(d) is a remand to the circuit court for a new hearing in compliance with the rule. People v. Janes, 158 Ill.2d 27, 33-36, 196 Ill.Dec. 625, 630 N.E.2d 790 (1994).

II. SUPREME COURT RULE 605(b)

The record establishes that the trial court's admonitions following defendant's guilty plea and sentencing did not comply with Supreme Court Rule 605(b). Rule 605(b) requires the trial court to advise defendant regarding the following: (1) his right to appeal; (2) the necessity of filing a timely written motion to have the trial court reconsider the sentence or to have the judgment vacated and for leave to withdraw the guilty plea; (3) the possible consequences if such a motion is granted; and (4) the waiver of any issues not raised in the motion. Strict compliance with Rule 605(b) is required, and when a defendant is not given Rule 605(b) admonitions and subsequently fails to file a motion to withdraw his guilty plea, the appropriate remedy is a remand to the circuit court for proceedings consistent with Rule 605(b).

Specifically, Supreme Court Rule 605(b) requires the trial judge to advise the defendant substantially as follows:

"(1) that the defendant has a right to appeal;

(2) that prior to taking an appeal the defendant must file in the trial court, within 30 days of the date on which sentence is imposed, a written motion asking to have the trial court reconsider the sentence or to have the judgment vacated and for leave to withdraw the plea of guilty, setting forth the grounds for the motion;

(3) that if the motion is allowed, the sentence will be modified or the plea of guilty, sentence and judgment will be vacated and a trial date will be 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 the defendant is indigent, a copy of the transcript of the proceedings at the time of the defendant's plea of guilty and sentence will be provided without cost to the defendant and counsel will be appointed to assist the defendant 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 reconsider the sentence or to vacate the judgment and to withdraw the plea of guilty shall be deemed waived." 188 Ill.2d R. 605(b).

The trial court in the instant case, in violation of this rule, admonished defendant as follows:

"[Y]ou have the right to petition this court to withdraw your plea of guilty. If you wish to do so, you must file that petition in writing within a 30-day period stating your reasons. If you don't do it within 30 days, you will lose your right to do so. If you don't have a lawyer for that purpose; if you cannot afford one, one will be provided for you. You will also be entitled to a free transcript of this proceeding."

That admonition failed to inform the defendant of the following: (1) defendant has a right to appeal; (2) before appealing defendant is required to file a written motion to withdraw the plea; (3) if that motion is granted, the plea will be vacated and a trial date set on the charges; (4) the State can reinstate dismissed charges; and (5) any issue not raised by the motion shall be deemed waived in an appeal taken from the plea. The trial judge failed to admonish defendant that filing a written motion to withdraw the plea is required before an appeal can be taken. Additionally, the incomplete admonitions failed to inform the defendant of the consequences of filing a motion to withdraw the plea.

Defense counsel did not file a motion to withdraw the plea of guilty prior to filing the notice of appeal. Regarding the consequences of that failure, we find People v. Jamison, 181 Ill.2d 24, 228 Ill.Dec. 920, 690 N.E.2d 995 (1998), instructive. In Jamison, the defendant pled guilty, was sentenced, and then filed a motion for reconsideration of the sentence. However, the defendant failed to file a motion to withdraw his plea of guilty. The motion for reconsideration of the sentence was denied. Defendant appealed. The trial judge admonished defendant that he must "file any post-trial motions within thirty days of this date." Jamison, 181 Ill.2d at 27, 228 Ill.Dec. 920, 690 N.E.2d 995. The supreme court held that the trial judge failed to properly admonish defendant regarding the fact that he was required to file a timely motion to withdraw the plea in order to appeal. Jamison, 181 Ill.2d at 30, 228 Ill.Dec. 920, 690 N.E.2d 995. The supreme court in Jamison indicated as follows:

"Here, the trial judge ordered defendant only `to file any post-trial motions within thirty days of this date.' This admonition does not substantially advise defendant in accordance with Rule 605(b). Because defendant was not admonished in accordance with Rule 605(b), we retain jurisdiction and remand this cause to the circuit court so that defendant can be given correct admonitions and allowed the opportunity to withdraw his guilty plea." Jamison, 181 Ill.2d at 30, 228 Ill.Dec. 920, 690 N.E.2d 995.

Similar to Jamison, defendant's attorney filed a motion to reconsider the sentence. When that motion was denied defendant's attorney filed a notice of appeal without filing a motion to withdraw defendant's guilty plea. The trial court admonition failed to articulate the procedural steps required in order for defendant to appeal. The trial judge failed to admonish defendant regarding the fact that he was required to file a timely motion to withdraw the plea prior to taking an appeal. Moreover, the trial court discussed defendant's right to withdraw his guilty plea, but failed to inform defendant of the consequences if the motion to withdraw the guilty plea were allowed. Applying the rationale articulated in Jamison, we find the trial court failed to properly admonish defendant under Supreme Court Rule 605(b).

III. SUPREME COURT RULE 402

Defendant also contends that the trial court failed to inform him that his six-year sentence would be consecutive to his seven-year sentence in an unrelated case. Defendant claims that such failure constituted a violation of Supreme Court Rule 402 (177 Ill.2d R. 402) and rendered his guilty plea not knowing and involuntary. Rule 402 requires that, before accepting a guilty plea, the trial judge admonish the defendant regarding the nature of the charges against him, his right to plead guilty or not, the minimum and maximum sentences prescribed by law, and the fact that by pleading guilty he waives his right to trial by jury and to confront the witnesses against him. 177 Ill.2d Rs. 402(a)(1) through (a)(4).

In relevant part, Supreme Court Rule 402 provides:

"In hearings on pleas of guilty, or in any case in which the defense offers to stipulate that the evidence is sufficient to convict, there must be substantial compliance with the following:

(a) Admonitions to Defendant. The court shall not accept a plea of guilty or a stipulation that the evidence is sufficient to convict without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:

* * *

(2) the minimum and maximum

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