People v. Hultz

• Decision Date: 14 July 1977
• Docket Number: No. 76-272,76-272
• Citation: People v. Hultz, 366 N.E.2d 897, 51 Ill.App.3d 663, 9 Ill.Dec. 386 (Ill. App. 1977)
• Parties: , 9 Ill.Dec. 386 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael J. HULTZ, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 897

366 N.E.2d 897

51 Ill.App.3d 663, 9 Ill.Dec. 386

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Michael J. HULTZ, Defendant-Appellant.

No. 76-272.

Appellate Court of Illinois, Fifth District.

July 14, 1977.

James Geis, DeputyState Appellate Defender, Chicago, Janet K. Nowlan, Law Student, assisted in the preparation of this brief, for defendant-appellant.

Robert H. Howerton, State's Atty., Marion, for plaintiff-appellee; Bruce D. Irish, Keith P. Vanden Dooren, Ill. State's Attys.Assn., Statewide Appellate Assistance Service, Mount Vernon, of counsel.

JONES, Justice.

Defendant, Michael Hultz, entered a plea of guilty to four counts of forgery charged in three separate informations.There were two arraignments at which the defendant waived his right to a preliminary hearing and his right to counsel.The four convictions were consolidated for sentencing.At the hearing the defendant requested an attorney for purposes of sentencing.The public defender was appointed and the cause continued to the following week.At the sentencing hearing the court received the presentence report, heard arguments of opposing counsel and a statement by the defendant.The court then imposed concurrent sentences of not less than three years and four months nor more than ten years on two informations and identical consecutive sentences on the third.

Two days after the sentences were imposed, defendant's counsel filed a motion to vacate the judgment and to grant defendantleave to withdraw his plea of guilty.The motion alleged that the plea was not freely and voluntarily given because the defendant was rushed to plea and given no opportunity for reflection, that the defendant did not make a knowing waiver of counsel and that the sentencing judge did not give proper consideration to statements made by the defendant at the sentencing hearing which resulted in an excessive sentence.The record does not reflect that a hearing was held on the motion.The defendant appeals from the order denying the motion.

The defendant argues that his counsel failed to file the certificate required by Rule 604(d), (Ill.Rev.Stat.1975, ch. 110A, par. 604(d)) governing motions to withdraw a plea of guilty, that the filing of this certificate is mandatory and in the absence of its filing the case must be reversed, relying on the authority of our recent decision in People v. Samuels, 42 Ill.App.3d 642, 1 Ill.Dec. 375, 356 N.E.2d 563.This allegation of defendant is in error.A proper certificate, stating that the defendant's attorney consulted with the defendant in person to ascertain his contentions of error in the entry of the plea of guilty and examined the trial court file before filing the motion, is contained in the record.The Supreme Court, in cases involving Rule 651(c) of the Supreme Court Rules(Ill.Rev.Stat.1975 ch. 110A, par. 651(c)) has held that filing of a certificate during the pendency of the appeal, as was the certificate in the instant case, satisfies the Rule.(People v. Harris, 50 Ill.2d 31, 276 N.E.2d 327.)We therefore find the certificate sufficient.

Next the defendant argues that the court erred in dismissing his motion to withdraw the plea of guilty on the basis of the written motion only.He contends that Rule 604(d) mandates that a hearing be held.The Rule reads in pertinent 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 withdraw his plea of guilty and vacate the judgment.The motion shall be in writing and shall state the grounds therefor.When the motion is based on facts that do not appear of record it shall be supported by affidavit.* * * The motion shall be heard promptly, and if allowed, the trial court shall vacate the judgment and permit the defendant to withdraw his plea of guilty and plead anew."

The defendant contends that the words "the motion shall be heard" when contrasted with the discretionary language of the Post Conviction...