People v. Owens
| Decision Date | 25 March 2021 |
| Docket Number | s. 2-19-0153 & 2-19-0155 cons. |
| Citation | 2021 IL App (2d) 190153,185 N.E.3d 695,452 Ill.Dec. 290 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Devonta OWENS, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
James E. Chadd, Thomas A. Lilien, and Amaris Danak, of State Appellate Defender's Office, of Elgin, for appellant.
No brief filed for appellee.
¶ 1 Defendant, Devonta Owens, appeals from his convictions of aggravated battery ( 720 ILCS 5/12-3.05(d)(2), (d)(3) (West 2016)) entered on a plea of guilty. Counsel from the Office of the State Appellate Defender, who was appointed to represent defendant on appeal, now moves to withdraw pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and People v. Jones , 38 Ill. 2d 384, 231 N.E.2d 390 (1967). Appellate counsel claims that there are no issues of arguable merit on appeal. For the reasons that follow, we grant the motion to withdraw and affirm defendant's convictions.
¶ 3 Defendant was charged in case Nos. 17-CF-365 and 17-CF-2442 with multiple counts of aggravated battery ( 720 ILCS 5/12-3.05(d)(2), (d)(3) (West 2016)). The public defender was appointed to represent defendant in both cases. Later, private counsel substituted as defendant's attorney in the cases. On March 19, 2018, private counsel informed the trial court that defendant wished to plead guilty in the cases. Counsel stated that, because he was new to the cases, he did not feel comfortable representing defendant in the plea. Defendant consented to counsel's withdrawal, and the trial court reappointed the public defender. Defendant proceeded to plead guilty to one count of aggravated battery in each case, in exchange for consecutive terms of 180 days in jail and 2 years of probation. The court admonished defendant of the rights he was relinquishing by pleading guilty, and defendant responded that he understood the admonitions. The court accepted the plea as free and voluntary and supported by a sufficient factual basis. The court then advised defendant about his appeal rights.
¶ 4 On April 6, 2018, defendant, who was proceeding pro se , filed a preprinted form titled "notice of motion and petition." Defendant indicated in the notice that, on May 7, 2018, he would "move [the trial court] to grant [his] petition: *** [to] [v]acate the [g]uilty [p]lea entered on 3/19/18." The notice stated no grounds for the relief it sought, and no motion was attached to the notice.
¶ 5 Defendant appeared pro se in court on May 7, 2018. The trial court asked defendant why the case had been scheduled for that date, and defendant replied that he had filed a motion to "vacate" his plea. The court asked defendant if he had discussed the matter with his public defender, and defendant answered that he intended to retain private counsel before the next court date. As the court discussed possible court dates with defendant, the State interjected and made an oral motion to strike defendant's "notice of motion and petition" because he had not filed a motion proper. The court denied the State's motion without prejudice, noting that the State could "raise" the motion again "when [defendant] brings in an attorney."1 The court set the matter for status on June 6, 2018.
¶ 6 On June 6, 2018, defendant appeared with private counsel. Counsel noted that defendant had "filed a motion to withdraw his plea," and counsel asked for additional time to review the transcripts. The court continued the matter to July 25, 2018, for status on the motion to withdraw.
¶ 7 Further continuances were granted as counsel sought case files from the public defender. On December 11, 2018, counsel withdrew and the public defender was reappointed. That same day, the public defender filed on defendant's behalf a motion to withdraw the guilty plea. Defendant filed an amended motion on January 22, 2019. He argued that his guilty plea was not knowing, intelligent, and voluntary, because he did not understand the admonishments that the court gave pursuant to Illinois Supreme Court Rule 402 (eff. July 1, 2012). Defendant also asserted actual innocence and claimed that he pled guilty "based on a misunderstanding of the case and consequence [sic ]."
¶ 8 The motion was heard on February 27, 2019. Defendant testified that, when he pleaded guilty, he was taking unprescribed psychotropic medication that he obtained from fellow inmates. This medication caused defendant's mind to go "cloudy." When he made the decision to plead guilty, he was under the influence of that medication and "really wasn't thinking straight." Defendant spoke to his attorney prior to entering the plea, but defendant "wasn't really paying any attention" to what the attorney said. He thought that by pleading guilty he would have "the chance to get out" of jail and take care of his son, who was going to be one year old. Defendant did not "really" understand the judge's questions to him during the plea proceeding.
¶ 9 The trial court denied the motion to withdraw the plea. The court found that defendant's replies to questions during the plea proceeding reflected that he knowingly and voluntarily entered his plea.
¶ 10 Defendant filed a timely appeal from the denial of his motion to withdraw the plea. The Office of the State Appellate Defender was appointed. In her motion to withdraw as counsel, appellate counsel states that she read the record and found no issue of arguable merit. Counsel further states that she advised defendant of her opinion. Counsel supports her motion with a memorandum of law providing a statement of facts and an argument why this appeal presents no issue of arguable merit. We advised defendant that he had 30 days to respond to the motion. That time is past, and defendant has not responded.
¶ 11 For the reasons that follow, we agree that this appeal lacks arguable merit and therefore grant counsel's motion to withdraw.
¶ 13 In the memorandum attached to her motion to withdraw, appellate counsel identifies two potential issues for appeal and concludes that neither has merit. The issues are (1) whether we lack jurisdiction over this appeal and (2) whether the trial court abused its discretion in denying defendant's motion to withdraw his guilty plea. We agree with counsel that neither issue has arguable merit.
¶ 15 Appellate counsel recognizes that, "in order to perfect an appeal after entering a fully-negotiated plea with sentencing concessions from the State, [defendant] was required to file a motion to withdraw his plea within 30 days of his plea and sentencing," pursuant to Illinois Supreme Court Rule 604(d) (eff. July 1, 2017). Counsel submits that defendant's timely pro se "notice of motion and petition," filed within 30 days of his plea and sentencing, "was sufficient to trigger Rule 604(d) [,] and the [trial] court correctly afforded him the full opportunity to explain his allegations with the assistance of counsel." Implicit in counsel's argument is that the "notice of motion and petition" tolled the time for defendant to file a notice of appeal from his plea and sentencing. We agree. Under this court's prior decisions, which we reaffirm today, defendant's "notice of motion and petition," though lacking an accompanying motion, was itself a "motion to withdraw the plea of guilty" under Rule 604(d). Because the "notice of motion and petition" was filed within 30 days of defendant's plea and sentencing, it sufficed to toll the time for appeal while defendant obtained the assistance of counsel and prepared a fully developed motion.
¶ 16 " ‘[A]n appeal is perfected by the timely filing of a notice of appeal, and it is this step which vests the appellate court with jurisdiction.’ " People v. Orahim , 2019 IL App (2d) 170257, ¶ 2, 434 Ill.Dec. 482, 136 N.E.3d 1007 (quoting In re J.T. , 221 Ill. 2d 338, 346, 303 Ill.Dec. 103, 851 N.E.2d 1 (2006) ). Illinois Supreme Court Rule 606(b) (eff. July 1, 2017) sets out the timing for the perfection of an appeal in a criminal case:
"Except as provided in Rule 604(d) , the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from or[,] if a motion directed against the judgment is timely filed, within 30 days after the entry of the order disposing of the motion." (Emphasis added.)
¶ 17 The reference to Rule 604(d) exists because that rule establishes a special prerequisite for appeals in cases where the defendant was convicted based on a plea of guilty. Rule 604(d) states in relevant part:
¶ 18 "Absent an extension of time granted by the trial court prior to the expiration of the 30-day deadline, [the motion to withdraw the guilty plea] must be filed within the 30-day period specified by [ Rule 604(d) ]." People v. Price , 364 Ill. App. 3d 543, 546, 301 Ill.Dec. 400, 846 N.E.2d 1003 (2006) (citing People v. Flowers , 208 Ill. 2d 291, 300, 280 Ill.Dec. 653, 802 N.E.2d 1174 (2003) ). "The motion shall be in writing and shall state the grounds therefor." Ill. S. Ct. R. 604(d) (eff. July 1, 2017). "The motion shall be presented promptly" to the trial court, which "shall then determine whether the defendant is represented by counsel, and if the defendant is indigent and desires counsel, the trial court shall appoint counsel." Id. "The filing of a Rule 604(d) motion is a condition precedent to an appeal of a plea of guilty." Price , 364 Ill. App. 3d at 546, 301 Ill.Dec. 400, 846 N.E.2d 1003.
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