People v. Morguez

• Decision Date: 12 November 1980
• Docket Number: No. 79-2187,79-2187
• Citation: 45 Ill.Dec. 795,413 N.E.2d 128,90 Ill.App.3d 471
• Parties: , 45 Ill.Dec. 795 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Nicholas MORGUEZ, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 128

413 N.E.2d 128

90 Ill.App.3d 471, 45 Ill.Dec. 795

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Nicholas MORGUEZ, Defendant-Appellant.

No. 79-2187.

Appellate Court of Illinois, First District, Second Division.

Nov. 12, 1980.

Lawrence Wolf Levin, Steven R. Decker, Chicago, for defendant-appellant.

Bernard Carey, State's Atty. of Cook County, Chicago for plaintiff-appellee; Marcia B. Orr, Michael K. Demetrio, Asst. State's Attys., Chicago, of counsel.

STAMOS, Justice:

Defendant, Nicholas Morguez, was indicted on four charges of burglary and one of attempted burglary. He pleaded guilty to all charges and received a sentence of three (3) years' imprisonment. The sole issue on appeal is whether the trial court erred in ruling defendant ineligible to be treated under the Dangerous Drug Abuse Act. Ill.Rev.Stat.1979, ch. 911/2, pars. 120.1-120.29.

Prior to trial defendant filed a petition with the trial court electing to be treated as a narcotics addict under section 8 (persons convicted of a crime) of the Dangerous Drug Abuse Act (the Act). (See Ill.Rev.Stat.1979, ch. 911/2, par. 120.8.) Acting on the petition, the trial court ordered defendant examined by T.A.S.C. (Treatment Alternatives to Street Crime). T.A.S.C. then filed a report stating that defendant had been accepted for the outpatient methadone treatment program at Hines V.A. Hospital. Subsequently, the court heard extensive arguments from counsel on defendant's eligibility to be treated under the Act. The statutory provision in question, section 8, provides in relevant part:

"An addict charged with or convicted of a crime is eligible to elect treatment under the supervision of a licensed program designated by the Commission instead of prosecution or probation, as the case may be unless * * * (d) other criminal proceedings alleging commission of a felony are pending against the addict." Ill.Rev.Stat.1979 ch. 911/2, par. 120.8.

The State argued that because more than one unrelated felony was pending against defendant at the same time, he was ineligible for treatment under the Act. Defendant contended that this provision excluded only those charged with a felony which was still pending prosecution or disposition at the time of sentencing. He further maintained that in his case all charges would be resolved as to guilt or innocence prior to sentencing because all five charges were before the same court, and accordingly, there would be no pending felony charge at the time the trial judge considered his eligibility under the Act.

The trial court found defendant ineligible for treatment under the Act because it construed the five felony charges to be pending as contemplated by the Act. The trial court stated:

"The Court: Cases decided before the Appellate Court, cases saying that he is an ineligible person with felony cases pending, one Appellate Court saying that he is eligible.

I am going to make a finding that he is ineligible. There was only one that said he was eligible.

Mr. Decker: (defense counsel) Would the ruling be about the same if the defendant entered into a voluntary plea in regard to all five cases that he has here and just proceed to the sentencing hearing?

The Court: It would be the same ruling."

At a later hearing defendant pleaded guilty to all five charges and, pursuant to a prior negotiated plea agreement, the prosecutor recommended a term of three years, flat time. The trial court addressed defendant separately on each charge and admonished him of the nature and consequences of his guilty plea. The State then presented a summary of the evidence which would support a finding of defendant's guilt and which would sustain the State's burden of proof beyond a reasonable doubt. The defendant stipulated to the summary and to his admissions concerning the charged crimes.

Following the acceptance of the pleas and prior to sentencing on the charges, defendant renewed his petition to be treated under the Act. Instead, the trial court sentenced defendant to three years' imprisonment. After sentencing, defendant asked the trial court to reconsider its sentencing and to allow defendant to receive treatment under the Act. As at the original hearing on the petition, the trial court stated its belief that defendant was ineligible under the explicit provisions of the Act which barred those with pending felonies. The trial court then commented:

"I would be the first to admit I was a little bit in a quandary as to what the law was. I ruled after giving it a lot of thought. I found him ineligible.

Mr. Decker: The defendant can attempt to appeal that ruling, if I may put that on the record just briefly."

Defendant's counsel was allowed to introduce defendant's testimony of heroin addiction. The court then informed defendant of his right to appeal and right to have an attorney appointed if indigence were shown. It also stated that notice of intent to appeal and withdrawal of the guilty plea must be perfected within 30 days of the hearing. Defense counsel then filed the notice of appeal. No further actions appear in the transcript.

In any appeal, the threshold question is whether the defendant has complied with procedural requisites for perfecting an appeal. The State contends that this defendant has failed to do so, specifically, that he has failed to file a written motion to withdraw his guilty plea prior to undertaking an appeal. Supreme Court Rule 604(d) addresses this situation, providing:

"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 presented promptly to the trial judge. * * * The defendant's attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain his contentions of error in the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of guilty, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings." Ill.Rev.Stat.1979, ch. 110A, par. 604(d) (emphasis added).

In People v. Stacey (1977), 68 Ill.2d 261, 12 Ill.Dec. 240, 369 N.E.2d 1254, our supreme court held that the requirements of Rule 604(d) applied in equal force to those appeals from a negotiated guilty plea where only the sentence was contested. It reasoned that a negotiated plea was "a bargain into which the People and the defendants freely entered. * * * To permit a defendant to appeal only the sentence without removing the plea would vitiate the agreement he entered into with the State." (Stacey, supra, at 265, 12 Ill.Dec. 240, 369 N.E.2d 1254.) The court recognized that this was a further delineation of the scope of Rule 604(d) from that set out in the earlier People v. Frey (1977) 67 Ill.2d 77, 7 Ill.Dec. 59, 364 N.E.2d 46, which applied the rule in the context of challenges to the voluntariness of a guilty plea. The court, however, found particular reason to mandate the withdrawal of the guilty plea in the instance of appeals of sentences imposed as the result of negotiated plea agreements.

"As we have observed, Rule 604(d) is more than a simple procedural step. It is one which goes to the heart of the agreement entered into between the People and the defendant. To allow the defendant to appeal by attacking only the sentence would make for the unwholesome situation of the accused, through negotiation with State, obtaining modification or dismissal of the more serious charges, entering a plea of guilty, and then attacking not his admission of the crime but only the sentence imposed." (Stacey, supra, 68 Ill.2d at 266-67, 12 Ill.Dec. 240, 369 N.E.2d 1254.)

The court acknowledged that the procedural rules for the taking of an appeal from those cases disposed of by guilty pleas differed from those resolved by a finding from the bench or by verdict of the jury. Nevertheless, each procedural rule was equally binding as a condition precedent to raising issues on appeal. Stacey, supra, at 266, 12 Ill.Dec. 240, 369 N.E.2d 1254.

The decision of the trial court in the instant case finding defendant ineligible to participate in the rehabilitation program set out by the Act presents meritorious grounds for appeal. Therefore, under Stacey, the issue should have been raised in a written motion to withdraw the plea of guilty and to vacate the judgment within 30 days following the decision complained of. The effect of defense counsel's failure to present a written motion raising this issue was to waive and, additionally, to foreclose the right to appeal a possible defect in the sentencing procedure employed by the trial court. (See People v. Porter (1978), 61 Ill.App.3d 941, 946, 19 Ill.Dec. 173, 378 N.E.2d 788.) The State, without citation to any number of appellate decisions which have construed exceptions to the dismissal mandated by Stacey, states that this court must dismiss defendant's appeal.

As discussed in People v. Kinzer (1978), 66 Ill.App.3d 466, 468, 23 Ill.Dec. 414, 384 N.E.2d 50, the right to appeal, while not per se of constitutional dimensions, where denied, is subject to constitutional scrutiny. (See People v. Brown (1968), 39 Ill.2d 307, 311, 235 N.E.2d 562.) From this philosophy a number of appellate court decisions have developed holding that the failure of counsel to file a motion to perfect the appeal constitutes ineffective assistance of counsel. (See Kinzer, supra, 66 Ill.App.3d at 469, 23 Ill.Dec. 414, 384 N.E.2d 50; People v. Brownell (1980), 86 Ill.App.3d 697, 698, 41 Ill.Dec. 882, 408 N.E.2d 304; People v. Pulley (1979), 75 Ill.App.3d 193, 194, 31 Ill.Dec. 131, ...